The Nature of Parenthood

abstract. This
Article explores what it means to fully vindicate gender and sexual-orientation
equality in the law of parental recognition. It does so by situating the
treatment of families formed through ART within a longer history of parentage.
Inequalities that persist in contemporary law are traceable to earlier eras. In
initially defining parentage through marriage, the common law embedded
parenthood within a gender-hierarchical, heterosexual order. Eventually, courts
and legislatures repudiated the common-law regime and protected biological
parent-child relationships formed outside marriage. While this effort to derive
parental recognition from biological connection was animated by egalitarian
impulses, it too operated within a gender-differentiated, heterosexual
paradigm.

Today,
the law increasingly accommodates families formed through ART, and, in doing
so, recognizes parents on not only biological but also social grounds. Yet, as
courts and legislatures approach the parental claims of women and same-sex
couples within existing frameworks organized around marital and biological
relationships, they reproduce some of the very gender- and sexuality-based
asymmetries embedded in those frameworks. With biological connection continuing
to anchor nonmarital parenthood, unmarried gays and lesbians face barriers to
parental recognition. With the gender-differentiated, heterosexual family
continuing to structure marital parenthood, the law organizes the legal family
around a biological mother. Against this backdrop, nonbiological mothers in
different-sex couples, as well as nonbiological fathers in same-sex couples,
struggle for parental recognition.

To
protect the parental interests of women and of gays and lesbians, this Article
urges greater emphasis on parenthood’s social dimensions. Of course, as our
common law origins demonstrate, the law has long recognized parental
relationships on social and not simply biological grounds. But today,
commitments to equality require reorienting family law in ways that ground
parental recognition more fully and evenhandedly in social contributions. While
this Article focuses primarily on reform of family law at the state level, it
also contemplates eventual constitutional oversight.

Introduction

Those who form
families through assisted reproductive technologies (ART)—donor
insemination, in vitro fertilization,
and gestational surrogacy—frequently establish parental relationships in
the absence of gestational or genetic connections to their children.1 In seeking legal parental
recognition, they do not deny the importance of biological ties, but simply
urge courts and legislatures to credit social contributions as well.2 In other
words, they ask for recognition that turns on factors such as intent to parent,
parental conduct, and family formation.3 Yet law fails to value parenthood’s
social dimensions adequately and consistently. This failure has significant and
painful consequences in the lives of parents and children. Those who have been
parenting their children for many years may find they are not legal parents. Some become legal parents
only by engaging in the time-consuming, costly, and invasive process of
adopting their children. Others, for whom adoption is impossible, remain legal
strangers to their children. Indeed, some parents may not realize adoption is
necessary until it is too late, perhaps when their relationship to the
legally-recognized parent dissolves.4

Consider just a
few examples. In Connecticut, a married different-sex couple had a child
through surrogacy and raised the child together for fourteen years. When they
divorced, the court deemed the mother, who had neither a gestational nor
genetic connection to the child, a legal stranger to her child.5 In Florida, an
unmarried same-sex couple used the same donor sperm to have four children, with
each woman giving birth to two children. They raised the children together
until their relationship ended several years later, at which point the court
left each woman with parental rights only to her two biological children.6 In New Jersey,
a male same-sex couple used a donor egg to have a child through a gestational
surrogate.7 The court
recognized the gestational surrogate, rather than the biological father’s
husband (and the child’s primary caretaker), as the second parent.8

Today, many
courts and legislatures seek to promote gender and sexual-orientation equality
in the family. Judges and lawmakers have repudiated gender-based distinctions
in both spousal and parental regulation,9 including gendered
presumptions in child custody.10 More recently, courts and
legislatures have acknowledged same-sex couples’ interest in family
recognition. In extending marriage to same-sex couples in Obergefell v. Hodges, the United States Supreme Court sought to
protect not only romantic bonds, but also parent-child relationships, formed by
gays and lesbians.11

Courts and
legislatures claim in principle to have repudiated the privileging of men over
women and different-sex over same-sex couples in the legal regulation of the
family. But in parentage law, such privileging remains. As the examples above
suggest, those who break from traditional norms of gender and
sexuality—women who separate motherhood from biological ties (for
instance, through surrogacy), and women and men who form families with a
same-sex partner—often find their parent-child relationships discounted.12 Accordingly, this Article explores
what it means, in the world of marriage equality, to build a system of parental
recognition that fully integrates families headed by same-sex couples in the
ways that Obergefell contemplates.
And it connects questions of sexual orientation to questions of gender,
aspiring to parental recognition that allows women, in not only same-sex but
also different-sex couples, to assume nontraditional parenting roles. It does
so by situating the contemporary legal treatment of family formation through
ART within a longer history of parental recognition.13

Biological and
social factors have long shaped the law of parental recognition. The common law
tied parenthood to marriage and thus made parentage a legal, rather than
biological, determination. Pursuant to the marital presumption (also known as
the presumption of legitimacy), when a married woman gave birth to a child, the
law recognized her husband as the child’s father. This presumption channeled
intuitions about biological paternity, but it could also conceal deviations
from biological facts—allowing men to avoid questions of paternity and
ensuring the child’s legitimacy. In contrast to the marital child, the
“illegitimate” child traditionally existed outside a legal family.14 The common
law’s organization of parentage through marriage reflected and enforced a
gender-hierarchical, heterosexual order—giving men authority over women
and children inside marriage and insulating men’s property from claims to inheritance
by children born outside marriage.

Slowly,
American law departed from the harshest aspects of its common-law origins.
Legislatures and courts began to recognize a legal relationship between a
mother and her “illegitimate” child—granting the mother custody and
bestowing on the child rights to support and eventually inheritance. In contrast,
fathers of “illegitimate” children had financial obligations imposed on them
less as a consequence of a legal family relationship and more as an effort to
privatize support. Even as American law came to mitigate some of the effects of
“illegitimacy,” the government continued to place substantial legal impediments
on nonmarital parents and children well into the twentieth century.

By the late 1960s and early 1970s, in the wake of increasing efforts
to hold unmarried fathers financially accountable and to protect the rights of
nonmarital children, the Court intervened by recognizing nonmarital
parent-child relationships on constitutional grounds. Biological connection
served as an explicit basis for constitutional protection, for both
mother-child and father-child relationships.15 Yet even as
the Court renounced “illegitimacy” and dismantled legally enforced gender
hierarchy within marriage, it produced a new form of gender differentiation in
parenthood—which it justified by resort to reproductive biology. At the
moment of birth, the nonmarital child—unlike the marital child—had
one legal parent: the mother. Gestation and birth evidenced the biological fact
of maternity and furnished a relationship to the child that justified legal
recognition. An unmarried man, in contrast, needed to demonstrate commitment to
the parent-child relationship, in addition to his genetic connection. Of
course, gestation provides a unique relationship to the child that is not only
biological but functional. But in a series of cases, the logic of reproductive
biology authorized more far-reaching social and legal differences between
mothers and fathers—situating women, but not men, as naturally
responsible for nonmarital children. Judges and lawmakers liberalized a
parentage regime that had been deliberately organized around the
gender-hierarchical, heterosexual status of marriage, yet continued to approach
parentage within a gender-differentiated, heterosexual paradigm.

Against this legal
backdrop, courts and legislatures in the late twentieth and early twenty-first
centuries began to address parent-child relationships formed through a range of
reproductive technologies.16 They determined parentage in ways
that turned increasingly on social, and not simply biological,
grounds—not only for men but for women, and not only for different-sex
but for same-sex couples. Concepts of intentional and functional parenthood
gained traction in both judicial and statutory reasoning addressing a range of
family configurations.17

Yet even as
courts and legislatures have acted to conform parentage law to more recent
egalitarian commitments, their attempts have been partial and incomplete. By
tracing the evolution of modern parentage law, this Article shows how judges
and lawmakers reason about parenthood in ways that carry forward legacies of
exclusion embedded in frameworks of parental recognition forged in earlier
eras. The account presented here tracks parental recognition across
jurisdictions, bodies of law, family configurations, and forms of ART, showing how courts and legislatures draw
distinctions between motherhood and fatherhood, different-sex and same-sex
couples, biological and nonbiological parents, and marital and nonmarital
families. Mapping regulation in this way reveals how the recognition of some
parents but not others on social grounds reflects and perpetuates inequality
based on gender and sexual orientation.18
With biological connection continuing to anchor nonmarital parenthood,
unmarried gays and lesbians struggle for parental recognition. With the
gender-differentiated, heterosexual family continuing to structure marital
parenthood, the law assumes the presence of a biological mother in ways that
burden nonbiological mothers in different-sex couples, as well as nonbiological
fathers in same-sex couples.

To vindicate
the parental interests of women and of gays and lesbians, this Article urges
greater emphasis on parenthood’s social dimensions. Same-sex family formation
features a parent without a genetic or gestational connection to the child;
therefore, treating same-sex parents as equals demands recognition on social
grounds. An approach that simply provides for equal treatment based on
biological criteria would continue to marginalize those who parent with a
same-sex partner, as well as women who defy conventional gender norms by
separating the biological fact of maternity from the social role of motherhood.19 The law has
traditionally connected women to motherhood as biological destiny, and thus
crediting the social aspects of motherhood is necessary to value the parenting
work of women who break from conventional roles.

This Article’s
analysis suggests the desirability of social grounds for parental recognition
from the perspective of not only parents but children. Nonetheless, it does not
aim to articulate an ideal model of parental recognition, nor does it defend
social grounds for parental recognition based on a best-interests-of-the-child
standard.20 Of course, courts and legislatures
would rarely protect parental interests in ways they see as harmful to
children. Yet unlike a custody determination, which turns on a child’s best
interests, parentage is generally guided by the parental interest.21 There are compelling reasons to keep
parentage from devolving purely into a question of best interests. Indeed,
views about gender and sexuality have historically influenced custody determinations
in ways that have frustrated not only children’s interests in ongoing relationships
with their parents, but also parents’ expectations of nondiscriminatory
treatment.22

After
elaborating the meaning of equality in the context of parental recognition,
this Article seeks to reorient family law in ways that protect the parent-child
relationships of women and same-sex couples by grounding recognition more fully
and evenhandedly in social contributions to parenting. Reform efforts will
occur primarily at the state level. State legislatures can restructure
parentage law in ways that credit parenthood’s social dimensions, and state
courts can apply parentage principles to recognize as legal parents those who
have committed to the work of parenting.

Nonetheless,
reform will likely require constitutional oversight. While scholars have
addressed constitutional limitations on government regulation of family
formation through ART,23 the issues of parental recognition
uncovered in this Article gesture toward a set of constitutional questions in
both equal protection and due process that will take years to fully emerge and
develop. Although constitutional claims will likely first arise in state courts
under state law, federal courts may eventually revisit constitutional
commitments to parental equality and liberty articulated in earlier eras.24 This Article closes by considering
the constitutional paths that might lead courts to recognize parents in ways
that align with emergent equality principles and accordingly protect parental
relationships on social, and not merely biological, grounds.

This Article
proceeds in four Parts. While its focus is on developments beginning in the
late twentieth century, Part I begins at a much earlier point to show
parenthood’s foundation in the institution of marriage. It then turns to the
repudiation of “illegitimacy,” focusing on the recognition of unmarried biological
fathers who demonstrated a commitment to the parental relationship. Both
approaches reflected and enforced gender differentiation and heterosexuality in
parenthood.

Part II turns
to the more recent—and ongoing—epoch of liberalization provoked by
ART. It provides the first comprehensive account of contemporary regulation of
parental recognition in the context of ART. It brings together multiple forms
of ART, demonstrating how law treats parent-child relationships formed through
donor insemination, IVF, and gestational surrogacy. This Part covers a range of
family configurations, including both different-sex and same-sex couples,
marital and nonmarital families, and biological and nonbiological parents. And
it surveys the law across jurisdictions, identifying positions that represent
majority views or clear modern trends, rather than focusing on less common
statutory and judicial approaches. Part II occasionally references Appendices
to this Article that catalog the current state of the law with respect to
parental recognition in the context of ART. Ultimately, Part II’s detailed
analysis of the contemporary law of parentage makes clear the unappreciated
status-based effects of the current regime.

Part III
uncovers the practical and expressive harms inflicted within this regime and
shows that these harms are not evenly distributed. Instead, they recur in ways
that exclude those who break from traditional norms of gender and sexuality that
govern reproduction, parenting, and the family. Part IV considers ways to
ameliorate these harms and promote equality based on gender and sexual
orientation. It shows how emergent equality commitments lead law to value the
social dimensions of parenthood more transparently, extensively, and
consistently. It offers ways to reconstruct parentage, through both legislation
and adjudication, primarily as a family law matter but also as a constitutional
matter. Finally, the Conclusion shows how the reforms envisioned here may lead
toward yet another shift in the law of parental recognition—a system of
multiple-parent recognition.

i. marriage, biology,
and parenthood

As this Part
shows, the common law organized parenthood around marriage and, in doing so,
enforced a gender-hierarchical, heterosexual order. Inside marriage, the
marital presumption purported to channel biological paternity but could hide
biological facts to maintain the husband’s parental status and the child’s
legitimacy. Outside marriage, even as local authorities sought to extract
support from parents of “illegitimate” children, parent-child relationships
lacked legal recognition. Only slowly did the law come to regard the “illegitimate”
child as part of a legal family. Reform efforts in the mid-twentieth century,
aimed at both the rights of nonmarital children and the financial responsibilities
of unmarried fathers, precipitated a wave of constitutional liberalization
beginning in the late 1960s. The Court repudiated key elements of the
common-law regime and protected the parental relationships of unmarried
biological parents. Nonetheless, the Court preserved a gender-differentiated,
heterosexual approach to parentage, justifying differences in the legal treatment
of mothers and fathers by resort to sex-based differences in reproductive
biology.

A. Parenthood, Marriage, and
“Illegitimacy”

The
Anglo-American legal system initially understood parentage as a relationship
defined through marriage. The marital presumption, or presumption of
legitimacy, recognized the mother’s husband as the child’s legal father.25 At English common law, overcoming
the presumption required showing that “the husband be out of the kingdom of
England...for above nine months, so that no
access to his wife can be presumed.”26 As this
factual showing suggests, the presumption purported to reflect biological
parenthood.27

Nonetheless,
the law assumed, but did not in fact require, blood ties. Instead, the marital
presumption both facilitated parental recognition that departed from biological
facts and cut off claims to parental recognition based on biological facts. If
the child was conceived through an extramarital relationship with another man,
the marital presumption allowed the husband to pretend he was the biological
and thus legal father.28 Indeed, traditionally
neither the husband nor wife were permitted to testify to the husband’s
“nonaccess,” meaning that the couple themselves could not penetrate the
presumption with inconsistent biological facts.29 A jury “could
not legally find against...legitimacy, except on facts which
prove, beyond all reasonable doubt, that the husband could not have been the
father.”30 As a
Massachusetts court observed more recently, “The effect of the common law
presumption of legitimacy was, in many instances, to prevent the fact finder
from reaching the true issue in the case.”31

By allowing the
marital presumption to hide situations in which the husband was not in fact the
biological father, the law ensured the child’s “legitimacy.”32 At common law, a child born outside
a marital relationship was deemed the child and heir of no one (filius nullius).33
Traditionally, the “illegitimate” child, as historian Michael Grossberg
explains, “had no recognized legal relations with his or her parents,
particularly not those of inheritance, maintenance, and custody.”34Nonetheless,
support for “illegitimate” children became a feature of the common-law system
in both England and America, as poor laws empowered local government to force
parents to financially support their “illegitimate” children.35 Still, financial support and legal parentage
remained distinct concepts, with officials able to “compel support but not
family membership.”36

The common-law
system reflected and enforced a gender-hierarchical order.37 Given the
legal doctrine of coverture, marriage subordinated women to men in both the
spousal and parenting relationship. The husband assumed authority over his
wife,38 and possessed “an almost unlimited
right to the custody of their minor legitimate children.”39 The father’s
rights were rooted in a property-based understanding of parenthood. As
Grossberg explains, children’s “services, earnings, and the like became the
property of their paternal masters in exchange for life and maintenance.”40 And the
system of marital parentage ensured transmission of wealth across generations
of men.41

Outside marriage, women routinely cared for their “illegitimate”
children, even as the parental relationship traditionally lacked legal status.42While the
American system reflected its English roots,43 early in the
nation’s history legislatures and courts began to extend limited legal
protections to “illegitimate” children.44 As Grossberg
documents, law “turn[ed] the customary bonds between the bastard and its mother
into a web of reciprocal legal rights and duties.”45 Mothers
possessed legal custody of their “illegitimate” children, and “illegitimate”
children gained legal rights to support—and eventually inheritance—from
their mothers.46 This
nineteenth-century American innovation reflected not recognition of women’s autonomy
but rather the “cult of domesticity” that valued women’s “maternal instinct.”47

Fathers of “illegitimate” children occupied a
different position. Whereas reforms relating to the mother-child relationship
focused on legal rights and family recognition, paternity hearings endeavored
to enforce financial obligations for the sake of protecting public funds.48 With
financial support seen as “a male obligation,” local authorities sought to hold
men liable for their nonmarital children.49 Notably, in
an age before reliable biological evidence, paternity often turned simply on
the parties’ testimony.50

Even with significant reform in favor of
“illegitimate” children over the course of the nineteenth century, the
importance of legitimacy remained. While many states provided mechanisms by
which men could confer rights on their nonmarital children,51 parity with
marital children proved elusive.52 Paternal
inheritance in particular remained out of reach.53 Well into the
mid-twentieth century, some states required unmarried fathers to engage in elaborate
proceedings simply to have legally protected relationships with their nonmarital
children.54 As a leading
reformer of “illegitimacy” commented, the law remained “an uncertain mixture of
old English common law tempered with occasional flashes of modern
thought—limited, narrow statutes which are directed at only selected
aspects of illegitimacy.”55

B. Parenthood’s Liberalization:
The Rise of Biological Authority

In the second
half of the twentieth century, reformers endeavored with greater success to
protect the rights of nonmarital children to both care and support and, relatedly,
to hold unmarried fathers financially responsible for their children. With
these efforts gaining traction in the 1960s, the Court intervened to remedy
some of the wrongs perpetrated by a common-law regime rooted in marital
privilege. It made biological connection an explicit basis for paternal rights
in ways that did not merely supplement, but in some circumstances rivaled,
marriage.56 Yet even as
the Court eradicated longstanding inequalities, it preserved gender
differentiation in parentage, appealing to differences in reproductive biology
to justify legal differences between mothers and fathers.

1. Unmarried Fathers,
Biological Connection, and Social Performance

By the late
1960s, the Court assumed an important role in further dismantling the
common-law system of “illegitimacy.”57 As the Court
began to recognize the constitutional rights of unmarried fathers in the 1970s,
the biological relationship provided its starting point.58 The
biological father was uniquely situated to claim the constitutional right to be
a legal parent. Yet the Court emphasized social contribution as the means to
achieve a protected liberty interest.59 Only the unmarried
biological father who “demonstrates a full commitment to the responsibilities
of parenthood” gained constitutional protection.60

The Court’s decisions bolstered legislative advocacy that sought to
recognize, with greater consistency across states, both rights and obligations
flowing from nonmarital parent-child relationships.61 Pushed by
these constitutional decisions,
states reformed their family law systems. The 1973 Uniform Parentage Act (UPA),
which many states adopted, endeavored to extend legal protection “equally to
every child and to every parent, regardless of the marital status of the
parents.”62 The UPA, and the state statutes that
followed suit, provided a number of “presumption[s] of paternity” through which
to recognize father-child relationships.63 Marriage
continued to provide a path to parentage.64 Other
presumptions applied to unmarried men, recognizing a man as a father if “he
acknowledges his paternity of the child in a writing filed with the
[government]” or if “he receives the child into his home and openly holds out
the child as his natural child.”65 Based on the assumption
that biological paternity generally produced legal fatherhood, these various
paternity presumptions were rebuttable through blood test evidence.66 Of course,
biological evidence did not simply allow men to refute parental status; it also
allowed the government to impose financial obligations on resistant fathers.
While the law ordinarily required an unmarried man seeking to establish his
parental status to take affirmative steps,67 biological
connection could provide the sole basis for imposing duties.68 Referencing
Congress’s plans to establish “a national system of federally assisted child
support enforcement,” the UPA drafters expressed their expectation that “blood
test evidence will go far toward stimulating voluntary settlements of actions
to determine paternity.”69

Biological
claims to fatherhood eventually conflicted with marital claims. The unmarried
father, armed with his biological connection, attempted to displace the
mother’s husband, who, even without a biological connection, claimed parenthood
based on the marital presumption. When asked to intervene in ways that would
disturb marriage’s ability to hide biological facts, the Court resisted. In its
1989 decision in Michael H. v. Gerald D.,
a fractured Court upheld application of California’s conclusive marital
presumption, thus preventing an unmarried biological father, with whom the
mother had an extramarital relationship, from asserting parentage against the wishes
of the mother and her husband.70 After explaining that
“California law, like nature itself,
makes no provision for dual fatherhood,”71 Justice
Scalia’s plurality opinion protected the nonbiological
parent-child relationship formed by the husband.72 By limiting
the constitutional rights of unmarried biological fathers—including
those, like Michael H., who had formed relationships with their biological
children—the Court preserved the marital presumption’s ability to conceal
biological facts. Thus, the Court protected purely social forms of parenthood
inside marriage.73

Nonetheless,
the emphasis on biological paternity crept into marital parenthood. In contrast
to California’s conclusive marital presumption affirmed in Michael H., many states, as well as the UPA, made the marital presumption
rebuttable.74 Eventually,
across a number of states, husbands could disestablish paternity through
biological evidence, wives could challenge their husband’s parental status, and
unmarried men could seek to rebut the marital presumption.75 In many
states, the reliability of biological evidence and the recognition of unmarried
fathers rendered the marital presumption more explicitly biological in ways
that departed from its common-law origins.76

By the late
twentieth century, a range of demographic, scientific, and political
developments had led family law to focus even more intently on ascertaining biological
fatherhood.77 With the
rapid rise of nonmarital childbirth and the increased sophistication of
paternity testing, the federal government engaged in far-reaching efforts to
identify fathers of nonmarital children and impose financial obligations on
them.78 To comply
with federal legislation aimed at increasing child support collection, states
adopted a procedure to encourage unmarried fathers to identify themselves
immediately upon the child’s birth to not only attain rights but also undertake
obligations. With voluntary acknowledgments of paternity (VAPs), a man (and the
child’s biological mother) attested to his status as the biological father.79

The revised
UPA, promulgated in 2000 and amended in 2002, responded to “federal mandates”
by building out a more elaborate system of paternity identification.80 It maintained
a number of paternity presumptions resembling those in the 1973 version,81 but did even
more than its predecessor to prioritize biological facts in paternity
adjudication. As the drafters explained, “[n]owadays, genetic testing makes it
possible in most cases to resolve competing claims to paternity.”82 The revised
UPA dedicated an entire article to “genetic testing”83 and sought to
“establish[] the controlling supremacy of admissible genetic test results in
the adjudication of paternity.”84

The revised UPA
also integrated the VAP procedure through an extensive set of provisions.85 Going beyond
federal regulations, which did not expressly “require that a man acknowledging
paternity must assert genetic paternity of the child,” the revised UPA sought
“to prevent circumvention of adoption laws by requiring a sworn assertion of
genetic parentage of the child.”86 Under the revised UPA’s
mechanism, “[t]he mother of a child and a man claiming to be the genetic father of the child may sign an
acknowledgment of paternity with intent to establish the man’s paternity.”87 VAPs are now
the most common way that legal fatherhood is established for nonmarital
children.88

2. Gender Differentiation
in Parenthood

The developments charted up to this point revolved around men’s parental status and disputes over fatherhood. At common law, married
mothers were legal mothers to their children. Courts and legislatures
eventually recognized legal bonds between mothers and their “illegitimate”
children,89
but continued to treat nonmarital mother-child relationships less favorably
than their marital counterparts. In fact, the Court initiated its repudiation
of “illegitimacy” in 1968 with two cases involving mother-child relationships.90

Still, the parental status of women was
rarely in dispute. The mother-child relationship was established by proof of
giving birth.91 Maternity was understood as a
conclusive fact92—not a
disputed status that could be rebutted.93 Generally, a
mother’s status could be divested only by her own relinquishment or an adjudication
of unfitness.94

As Serena
Mayeri’s important historical work shows, as the Court forged constitutional
sex-equality doctrine in the 1970s and 1980s, it generally resisted claims that
the differential treatment of unmarried mothers and fathers constituted
impermissible sex discrimination.95 The Court repudiated the purposive
forms of gender subordination embodied in the law of coverture and “illegitimacy,”
but turned to reproductive biology to authorize gender differentiation in
parenthood. While the Court demanded social performance of parenthood from
unmarried fathers claiming constitutional protection, for women the social
aspects of parenthood were assumed to flow inevitably from the biological.96 Because
gestation established not merely a biological but also a social connection to
the child, the mother, unlike the father, had a relationship with the child at
the moment of birth. The requirement that unmarried fathers “grasp[] [the]
opportunity” to form a parent-child relationship to have a constitutionally
protected interest appeared justified by men’s lack of pre-birth connection to
the child.97 As the Court
stated in Lehr v. Robertson: “The
mother carries and bears the child, and in this sense her parental relationship
is clear. The validity of the father’s parental claims must be gauged by other
measures.”98

Nonetheless,
the Court resorted to reproductive differences between women and men to
authorize more far-reaching social and legal differences between mothers and
fathers. Women became mothers automatically—and thus had child-rearing
responsibilities imposed on them—while men often escaped parental
obligations.99 And for those
men who desired parental rights, the Court relied on biological differences in
ways that discounted their parental contributions after the child’s birth.100 As Sylvia Law argues, “[T]he facts
of the cases reveal the inaccuracy of the stereotypes asserted by the various
Justices as ‘biological fact.’”101

Consider Parham v. Hughes, in which the Court
upheld a Georgia statute that allowed the mother, but not the father, of an
“illegitimate” child to sue for wrongful death of the child.102 The father
had not undertaken the procedures required to formally legitimate the child,
but he had signed the child’s birth certificate, contributed to the child’s
support, and regularly visited with the child.103 The Court
rejected the father’s equal protection claim because “mothers and fathers of
illegitimate children are not similarly situated.... Unlike the mother of an illegitimate
child whose identity will rarely be in doubt, the identity of the father will
frequently be unknown.”104 For the Court, biological
differences between women and men—differences that may be relevant to knowing
the biological parent’s identity—justified legal distinctions between mothers
and fathers, even where the father’s identity was clear and he had formed a
parental relationship with the child.105

The gendered
distinctions countenanced in the 1970s and 1980s reemerged with greater force
in the immigration context in subsequent decades. By the start of the
twenty-first century, the Court turned to reproductive biology to justify a
gendered order of parentage with respect to citizenship status—specifically
for nonmarital parent-child relationships. While marital children enjoyed
rights to citizenship based on mother-child and father-child ties, nonmarital
children’s rights were restricted based on the sex of their citizen parent.
This system reflected and enforced views about both the legitimacy of
nonmarital family formation and the roles of women and men with respect to
their nonmarital children.

First in Miller v. Albright106 and then in Nguyen v. INS,107 the Court
considered the constitutionality of a statutory scheme making it more difficult
for a nonmarital child born abroad to claim citizenship when the citizen parent
is the father.108 Where the citizen parent
is the mother, the child acquires the mother’s nationality status at birth.109 But the
citizen father, in addition to proving a biological connection, must take
additional, post-birth steps—legitimation of the child, a written
acknowledgement of paternity, or an adjudication of paternity—to evidence
the social bonds of parenthood.110

In Miller, a deeply fractured Court refused
to hold the statutory provisions unconstitutional.111 Justice
Stevens announced the Court’s judgment but delivered an opinion joined only by
Chief Justice Rehnquist.112 The opinion reasoned that
the anti-stereotyping principle implicated in the Court’s leading sex-equality
precedents, many of which involved family-based rights and responsibilities,
was “only indirectly involved in this case.”113 Instead,
Justice Stevens relied on Lehr, which
upheld the differential treatment of unmarried mothers and fathers,114 and
concluded that “biological differences between single men and single women
provide a relevant basis for differing rules governing their ability to confer
citizenship on children born in foreign lands.”115

Resolving the
constitutional issues left open in Miller,
a sharply divided Court in Nguyen
found no equal protection violation, largely because “[f]athers and mothers are
not similarly situated with regard to the proof of biological parenthood.”116 The Court
explained: “Given the proof of motherhood that is inherent in birth itself, it
is unremarkable that Congress did not require the same affirmative steps of
mothers.”117 But the
Court translated differences in the biological dimensions of parenthood into
differences in the social dimensions: “The mother knows that the child is in
being and is hers and has an initial point of contact with him. There is at
least an opportunity for mother and child to develop a real, meaningful
relationship.”118 But for the father, “[t]he
same opportunity does not result from the event of birth, as a matter of biological
inevitability....”119 In the
earlier cases on unmarried fathers, a sex-based reproductive
difference—gestation—could be understood to create a different
parent-child relationship at birth. Now, that difference justified far-reaching
distinctions in the post-birth relationships of unmarried mothers and fathers.

While the Court
had warned that physiological differences cannot justify policies that reflect
or perpetuate generalizations about the distinct capacities of women and men,120 the Nguyen Court rejected the argument that
the differential treatment of mothers and fathers reflected “a stereotype that
women are more likely than men to actually establish a relationship with their
children.”121 Over a
strong dissent, the Court viewed the immigration regulations as simply
reflecting biological facts.122 Just as in earlier cases, the
Court’s gender-differentiated treatment of parent-child relationships
discounted the social performance of biological fathers.123 The father in Nguyen, after all, had parented his child for most of the child’s
life.124 The decision
relied on an approach to parenthood forged in previous decades,125 but
subjected unmarried biological fathers to even more demanding standards in the
immigration context.126

Conflict over
sex-based distinctions in immigration continues. This term, the Court is
considering a challenge to a law that placed more onerous residency
requirements on unmarried fathers.127 Under the
law at issue in Morales-Santana v. Lynch,
a nonmarital child born abroad to a citizen mother enjoyed citizenship at birth
if the mother resided in the United States (or U.S. possession) for at least
one year at some point prior to the child’s birth.128 But if the
citizen parent is the father, a child attained citizenship at birth only if the
father resided in the United States (or U.S. possession) for a total of ten
years, at least five of which must occur after age fourteen.129 While the
statute has been amended, a similar distinction persists in modern immigration
law, though with a shorter physical-presence requirement for fathers.130 The
government has defended the law challenged in Morales-Santana based in part on a contention about parentage law: that,
for a nonmarital child, the mother and not the father is “typically” the only
legal parent at the moment of birth.131 But that says nothing of the actual
parent-child relationships that develop after birth. Here, the father
legitimated the child by marrying the mother when the child was eight.132 Yet that
legitimation is insufficient to confer citizenship in light of the pre-birth
residency requirements.

Of course,
these immigration cases involve only unmarried
parents, reflecting the law’s continued division between marital and nonmarital
parenthood.133 The
immigration system has perpetuated views not only about the gender-based roles
of women and men with respect to their nonmarital children, but also about the
place of nonmarital parents and children. Both the gender- and marriage-based
forms of differentiation in the immigration cases reflect understandings that
structured the Court’s earlier cases with respect to family law. Yet the
immigration cases have relied more extensively on gender differentiation in
parenthood and have done so in ways that are more punitive to nonmarital
parents and children.

ii. assisted reproduction
and parenthood’s modern liberalization

For centuries,
individuals who aspired to parenthood as a meaningful life project had their
desires frustrated. Women who could not become pregnant or carry a pregnancy to
term, as well as men who suffered from infertility, would live without the
families they imagined. Adoption became widespread over the course of the
twentieth century and offered a path to parenthood for some, but many either
had their attempts rejected by restrictive adoption regimes or simply decided
to forego parenting without the possibility of biological children.

In the late
twentieth century, assisted reproductive technologies (ART) offered new hope to
these individuals and, in the process, transformed practices of family
formation.134 Married heterosexual
couples who in previous generations would have gone without children found
opportunities for parenthood through ART.135 Use of donor
sperm had for decades allowed women with infertile husbands to have
children—often without anyone but the doctor knowing that the child was
not biologically related to the husband.136 Now, women
who themselves struggled with infertility found hope in a variety of new techniques.
In vitro fertilization (IVF), in
which fertilization occurs outside the woman’s body, allowed many women to
carry and bear their own genetic children.137 By
separating gestation from genetics, IVF also facilitated new practices of egg
donation and gestational surrogacy.138

The use of ART
soared in the first part of the twenty-first century.139 Approximately sixty thousand live
births resulted from IVF in 2014, a fifty percent jump over the previous
decade.140 The number
of children born with donor gametes grew,141 as did the
number born to gestational surrogates.142 While
married different-sex couples were the first to use ART, others eventually
turned to ART to form less traditional families. Single women used donor
insemination to become mothers, while gays and lesbians engaged in donor insemination,
IVF, and surrogacy to have children.143 As the social meaning and practical
import of ART shifted, questions of parental recognition began to implicate
emergent commitments to gender and sexual-orientation equality.144

This Part
examines the law’s response to parent-child relationships formed through ART, bringing together developments across jurisdictions
and involving a range of family arrangements made possible by donor
insemination, IVF, and gestational surrogacy. In some states, family law has
aggressively attempted to adapt to developments in parenthood by broadly
facilitating family formation through ART and legally recognizing a range of
nonbiological parents.145 But the focus here is on a
wider swath of jurisdictions, where law has rendered some individuals legal
parents to their children while leaving others legal strangers.146 Accordingly,
having surveyed the law across all jurisdictions, this Part attempts to capture
approaches that are representative, focusing on majority positions and clear
modern trends, rather than attending to less common statutory regimes and
judicial decisions.147

The account
presented here is structured around a set of related distinctions that shape
legal recognition: marital and nonmarital parent-child relationships,
biological and nonbiological parent-child relationships, motherhood and
fatherhood, and different-sex and same-sex couples.148 It shows
how, even as principles of gender and sexual-orientation equality have animated
shifts in parental recognition, parentage law continues to draw distinctions
that carry forward legacies of inequality embedded in frameworks forged in
earlier eras.

As Part I
explained, the common law organized parentage around the gender-hierarchical
relationship of marriage. The marital presumption historically facilitated the
parental recognition of men who were not in fact biological fathers. When, in
the second half of the twentieth century, the Court intervened to protect
nonmarital parent-child relationships on constitutional grounds, it made
biological connection necessary for legal recognition. Yet biological connection
operated differently for mothers and fathers. For the Court, gestation and
birth inevitably produced legal motherhood. Unmarried biological fathers, in
contrast, were required to demonstrate the social bonds of parenthood to have
legally protected rights. Inside marriage, men could achieve legal parenthood
without biological parenthood. Outside marriage, men could assert biological
parenthood but still lack legal parenthood. For women, in contrast, biological
and legal parental ties traveled together, both inside and outside marriage.149

As this Part
shows, the gender-differentiated logic of both the common-law approach and its
constitutional repudiation have structured law’s response to ART. When the law
accommodated the use of donor insemination by married different-sex couples, it
openly acknowledged and expanded marriage’s capacity to derive legal fatherhood
purely from social arrangements. Courts and legislatures treated the man married
to the biological mother as the child’s father.

While legal
fatherhood’s nonbiological capacity inside marriage expanded, legal motherhood
largely remained a biological status—even as ART complicated motherhood’s
biological basis. A woman who gives birth to a child conceived with a donor egg
is a legal parent; the biological facts of gestation and birth, along with her
intention to be the child’s mother, render her the legal mother. Similarly, a
woman who uses her own egg but engages a gestational surrogate to carry the
child is a legal parent; the genetic contribution and her intention to be the
child’s mother render her the legal mother. Social aspects of parenthood now
shape determinations of motherhood, but, unlike fatherhood, not in ways that
dislodge parental recognition from biological connection. When a woman both engages a gestational surrogate and uses a donor egg, the law often
fails to treat her as a legal mother. As this Part makes clear, men without
biological ties attain parentage by virtue of marriage to the biological
mother, but women without biological ties do not attain parentage by virtue of
marriage to the biological father.

The common law
organized parentage around a legal relationship—marriage—that was
not only gender-hierarchical but also exclusively heterosexual. As Part I
explained, when courts and legislatures endeavored to protect nonmarital parent-child relationships, they
turned explicitly to biological connection as a basis for parental recognition.
But tethering parenthood to biological ties perpetuates the exclusion of
same-sex couples, who necessarily include a parent without a gestational or
genetic connection to the child.

Marriage has
intervened in ways imagined to remedy the struggles of same-sex couples.150 Indeed, the
Court in Obergefell focused on
parenthood,specifically listing
“birth...certificates;...and child custody, support, and
visitation” as “aspects of marital status” that would now be open to same-sex
couples.151 Yet, as this
Part shows, the law has accommodated same-sex parenting within a framework
shaped by the gender-differentiated, heterosexual family—recognizing
nonbiological parents in married same-sex couples to the extent they satisfy
criteria used to identify legal fathers.
Women, not men, in same-sex couples
gain access to parentage through marriage. The woman married to the biological mother can be recognized as the
legal parent by virtue of her marriage. Men in same-sex couples find themselves
in the same position as women in different-sex couples. Neither can attain
parentage by virtue of marriage to the biological father, and both struggle for
parental recognition in the absence of a biological connection to the child.

Ultimately,
this Part’s treatment of parental recognition and ART reveals a critical
dynamic: courts and legislatures continue to structure the legal family around
a biological mother. Biological fathers can be replaced—by either women
or men who make purely social claims to parental recognition­­—yet
biological mothers remain necessary. Within this regime, women who separate motherhood
from biological ties and men who parent with a same-sex partner often go
without legal recognition. To uncover this dynamic, this Part begins with donor
insemination and then moves through family formation made possible by IVF,
concluding with egg-donor gestational surrogacy.

A. Donor Insemination

The first and
most basic form of assisted reproduction, donor insemination, forced law to
confront situations in which the biological and social dimensions of parenthood
point in different directions. While the identity of the biological and legal
mother was clear, law struggled with determinations of who, if anyone, would be
the child’s second parent. Ultimately, courts and legislatures expanded the
marital presumption’s capacity to obscure biological facts in favor of social
arrangements that privileged marriage. With donor insemination, law treated the
man married to the biological mother as the child’s father.

As this Section
shows, same-sex family formation eventually injected contemporary questions of
equality into the regulation of donor insemination, as women in same-sex
couples sought legal recognition for the nonbiological mother. In the absence
of adoption by the nonbiological mother, parental recognition largely emerged
from presumptions of parentage applicable only to married couples; the birth
mother’s legal spouse could be recognized as a legal parent regardless of sex
or sexual orientation. But outside marriage, same-sex couples continued to struggle
for parental recognition; the nonbiological mother would rarely be recognized
as the child’s legal parent at the time of the child’s birth. For those outside
marriage, biological connections continued to structure parental
recognition—rendering same-sex couples, who are not similarly situated to
different-sex couples with respect to biological parenthood, especially
vulnerable.

1. Different-Sex Couples,
Marriage, and Nonbiological Fathers

Donor
insemination, which law first confronted within the marital family, exposed the
confused state of the marital presumption, which assumed biological paternity
but could recognize relationships that deviated from biological facts. Donor
insemination made such deviations deliberate, even if not plainly visible.

Courts and
lawmakers initially responded by condemning donor insemination as a threat to
the “natural” family and rejecting application of the marital presumption.
Because the woman conceived with semen from another man, she was thought to
have committed adultery, and the resulting child was considered “illegitimate.”152 This logic
remained rooted in men’s entitlements, and specifically concerns with “the
possibility of introducing into the family of the husband a false strain of
blood.”153

Despite this
hostile legal backdrop, the practice of donor insemination became more
widespread. Beyond the couple and their doctor, few knew that a child was
conceived with donor sperm. Judges and lawmakers eventually responded and, by
the mid-1960s and early 1970s, began to expressly treat the husband of a woman
who conceived with donor sperm as the child’s “lawful” father.154 Following
the 1973 UPA, most states adopted statutory provisions providing that marriage
to the mother and consent to assisted reproduction yielded parental recognition
for the husband.155 The husband’s consent
demonstrated his willingness to introduce another man’s “blood” into his family
line. At the same time, his recognition allowed the state to assure the child’s
support from private sources.156

Since most
states, as well as the original UPA, limited donor-insemination provisions to
married couples, those provisions merely replicated the marital presumption’s
logic.157 In fact, in
the many states that failed to enact donor-insemination statutes, the husband
of a woman giving birth to a child conceived with donor sperm is presumed the
child’s legal father simply by virtue of the marital presumption.158 Marriage had
always served as an imperfect proxy for biological paternity. But by explicitly
accepting donor insemination, law embraced social fatherhood in ways that
rendered marriage not a proxy but a substitute for biological paternity.

2. Same-Sex
Couples, Marriage, and Nonbiological Mothers

By the 1980s
and 1990s, donor insemination furnished lesbian couples a relatively accessible
path to child-rearing. Excluded from marriage, same-sex couples inhabited a
nonmarital parentage regime that mostly turned on biological connections. Since
only one of the women would have a biological connection to the child, the
other found herself a legal stranger upon the child’s birth. For many years,
courts in most states refused to provide comprehensive legal recognition to the
nonbiological mother.159 Over time, in an effort to provide
some protections to same-sex parents, some states furnished legal recognition
to nonbiological mothers even in the absence of second-parent adoption.160 Yet even in
these states, legal recognition did not arise at the child’s birth and instead
required some period of parenting.161

By the 2000s,
access to marriage became the chief test of equality for same-sex couples, and
was understood to protect not only their romantic bonds but also their
parent-child relationships. As same-sex couples gained entry to marriage—first
on a state-by-state basis, and then nationwide with Obergefell—they began to press claims to parental recognition
by virtue of their marital relationships. Marriage, of course, had shown the
capacity to allow individuals to achieve parentage on social rather than biological
grounds. While only men, not women, had received parental recognition without a
biological connection, judges and lawmakers soon accommodated married women.

Courts and
legislatures adapted donor-insemination regulations governing married
different-sex couples to married same-sex couples. Provisions recognizing the
mother’s husband as the legal father can similarly treat the mother’s wife as
the “natural,” and thus legal, parent.162 While
Appendix A shows that only about a third of states with donor-insemination
statutes currently maintain gender-neutral provisions,163 courts that
have considered the issue in other states have, almost without exception,
applied these statutes to married same-sex couples.164

In many states,
such application has been aided by explicit gender-neutrality directives
modeled on the UPA. The original UPA provides that in actions “to determine the
existence or nonexistence of a mother and child relationship[,] [i]nsofar as
practicable, the provisions...applicable to the father and child
relationship apply.”165
The revised UPA includes a similar directive, stating that the provisions
“relating to determination of paternity apply to determinations of maternity.”166 While the UPA drafters viewed “cases
involving disputed maternity [as] extraordinarily rare,”167 same-sex
couples tested the reach of these gender-neutrality directives. With marriage
equality, courts began to treat the nonbiological mother like a legal “father.”
Gender neutrality furthered principles of not only sex but also sexual-orientation
equality.

Strikingly,
specific donor-insemination statutes have become in some ways ancillary, as
states have simply applied the marital presumption to lesbian couples.168 A New
York court, for instance,
determined that common-law and statutory presumptions of parentage must be
interpreted in a “gender-neutral” manner in light of the onset of marriage
equality, and so concluded that “the child of either partner in a married
same-sex couple will be presumed to be the child of both, even though the child
is not genetically linked to both parents.”169 As Appendix A
shows, some state legislatures have revised not only their donor-insemination
provisions but also their marital presumptions to recognize that the person married to the “woman giving birth”
or the “natural mother” is presumed to be the child’s legal parent.170 In
these states, the marital presumption, long capable of hiding contrary
biological facts, expressly embraces purely social aspects of parenthood.171 If
law is not pretending that the individual presumed to be the parent is the
biological parent, it no longer seems necessary that that individual be a man.
Now, parenthood for both men and women can derive from marriage to the
biological mother.

While many of these developments emerged solely as a matter
of family law, constitutional equality commitments also drove judicial
decisions applying the marital presumption to same-sex couples. After Obergefell, courts have held that
donor-insemination provisions must allow the biological mother’s wife to be
treated as the child’s natural parent, just like a husband would be.172 Several courts have also held that
equal protection requires the general marital presumption to apply to lesbian
couples.173

Nonetheless, the reach of the marital presumption is far from
settled.174 Even
though courts considering the issue have largely required application of the
marital presumption to lesbian couples, some state governments continue to defend parenthood as a biological
fact and assert that the marital presumption serves as a proxy for biological
parenthood. Yet these states have allowed married men in different-sex couples
to use the presumption to derive legal fatherhood of children conceived through
donor insemination.175 Now, when confronted with
same-sex couples who make deviations from biology obvious, these states have
struggled to frame this nonbiological application to different-sex couples as
an exception to be minimized, rather than extended.

Courts
generally have responded skeptically to these resistant states. For example, a
federal district court in Indiana recently considered a number of cases in
which state officials expressly told married same-sex couples they could not
both be listed on the birth certificate and that the nonbiological mother would
have to adopt her child.176 Repudiating the state’s
actions, the court ruled that Indiana cannot offer mothers with different-sex
spouses the “legal fiction” facilitated by the marital presumption but withhold
that “legal fiction” from mothers with same-sex spouses.177 The marital
presumption had become a critical site for the promotion of sex and sexual-orientation
equality.

3. Donor Insemination
Outside Marriage

For married
couples using donor insemination, the law has increasingly recognized their
claims to parentage. Both nonbiological fathers in different-sex couples and
nonbiological mothers in same-sex couples attain parentage by virtue of
marriage to the biological mother. While parentage inside marriage has tracked
individuals’ expectations about their parent-child bonds, parentage outside
marriage in the context of donor insemination often has not.

As Appendix B
shows, most states draw marital-status distinctions in their treatment of donor
insemination. Spouses, not unmarried partners, are recognized as legal parents
of children conceived with donor sperm.178 Further, under
the original UPA and the laws of many states, sperm donors are divested of
rights and responsibilities only if they donate sperm for use by a married woman.179 The nonrecognition of unmarried
nonbiological coparents and the legal recognition of sperm donors both
complicate ART for unmarried individuals and threaten the stability of
nonmarital families.

The
nonrecognition of nonbiological unmarried parents is particularly problematic
for same-sex couples, who are not similarly situated to different-sex couples
as a matter of biological parenthood. Same-sex couples necessarily include a
parent without a gestational or genetic tie to the child,180 and thus are
especially vulnerable in a parentage regime where recognition turns on biological
connection. Yet courts have generally held that laws meet equality commitments
as long as a nonbiological lesbian coparent in an unmarried same-sex couple is
treated the same as a nonbiological father in an unmarried different-sex
couple.181 In most
jurisdictions, neither of these individuals ordinarily enjoys parentage without
adoption.182

Lacking
statutory or equitable paths to recognition, the unmarried coparent, even after
years of parenting, generally finds no relief in constitutional doctrine.183 For
instance, in Russell v. Pasik, a
lesbian couple had four children with the same donor sperm, with each woman
giving birth to two children.184 They raised the children
together for years, but after the couple’s relationship dissolved, only the
biological parent-child relationships enjoyed legal recognition. The Florida
appellate court rejected the argument that each woman had constitutionally
protected rights with respect to each child.185 The court
acknowledged the significance of the social performance of parenthood, explaining
that “the act of assuming parental responsibilities and actively caring for a
child is sufficient to develop constitutional rights in favor of the parent.”186 But,
recalling the earlier cases on unmarried fathers, it then explained that this
path to parental rights springs only from biology: “[I]t is the biological connection between parent and
child that ‘gives rise to an inchoate right to be a parent that may develop
into a protected fundamental constitutional right based on the actions of the
parent.’”187 Each woman
enjoyed a legally protected relationship only with the children to whom she
gave birth.

Equality for
same-sex couples had been channeled through marriage and its ability to legally
recognize nonbiological fathers. Most states grafted the two legal regimes that
had formed to regulate parentage—marriage and biology—onto donor
insemination and thus sharply differentiated between marital and nonmarital
families. A man, and now a woman, can be a legal parent of a child conceived
with donor sperm if that man or woman is married to the biological mother. In
an effort to protect nonmarital
parent-child relationships that had been excluded by the common law’s marital
order, courts and legislatures had turned explicitly to biological connection
as a basis for parental recognition. But tethering parenthood to biological
ties perpetuates same-sex couples’ exclusion. The unmarried mother’s partner,
with neither a biological nor marital basis for parental recognition, will
ordinarily be a legal stranger upon the child’s birth, even if she intends to
parent the child and does in fact parent the child.

B. In Vitro Fertilization, Egg
Donation, and Gestational Surrogacy

While donor
insemination challenged the relationship between the biological fact of
paternity and the social role of fatherhood, IVF, in which the egg is
fertilized outside the woman’s body, challenged the relationship between the
biological facts of maternity—gestation and genetics—and the social
role of motherhood.188 By separating gestation
from genetics, IVF made biological connection itself a more complex marker of
parenthood. The biological fact of motherhood had always followed seamlessly
from birth, but now a woman could give birth to a child genetically related to
another woman. Of course, many women used IVF in ways that allowed them to give
birth to their own genetic children. But the technology also facilitated
important new practices—egg (and embryo) donation, gestational surrogacy,
and “co-maternity”—that divided biological maternity across two women.

Courts and
legislatures, this Section shows, navigated these new situations in ways
animated by commitments to gender and sexual-orientation equality. Women, they
recognized, could attain legal motherhood based on birth or genetics, and, correspondingly, could separate the physical
facts of pregnancy and birth from the social role of motherhood. The legal
status of motherhood followed not simply from the biological fact of maternity
but from the social performance of parenthood. Not only could women in
different-sex couples achieve parental recognition based on birth or genetics, but women in same-sex
couples could each achieve parental recognition by having one woman be the
genetic mother and the other be the gestational mother. Nevertheless, even as
social markers of parenthood became critical to legal determinations of motherhood,
a biological connection—whether gestation or genetics—remained critical
to legal motherhood. Law continued to ground motherhood, unlike fatherhood, in
a biological tie.

1. Donor Eggs and Birth
Mothers

The use of
donor eggs or embryos did not ordinarily provoke controversy. Since the woman
giving birth was the intended mother, others would rarely know she was not genetically
related to the child. When disputes arose, they often occurred upon dissolution
of a relationship, when the birth mother’s husband or partner (and the child’s
biological father) attempted to use the mother’s lack of genetic connection to
deny her parental status.

As courts and
legislatures approached these conflicts, social factors that had begun to shape
legal fatherhood in the regulation of donor insemination provided guidance.
Consider a representative case from Tennessee.189 Cindy and
Charles, an unmarried couple in their mid-forties, decided to have children together.190 Cindy, who
already had children, was concerned about the viability of her eggs and thus
turned to donor eggs and IVF.191 After Cindy gave birth to
triplets, she and Charles raised the children together.192 When the
couple later broke up, Charles attempted to use Cindy’s lack of genetic
connection to deprive her of parental rights.193

The Tennessee
Supreme Court rejected his argument. In recognizing Cindy as the legal mother,
the court focused on the fact that both she and Charles intended that she be
the children’s legal mother. The court looked to the state’s donor-insemination
statute to support its consideration of intent, explaining how that statute
“confers parental status on a husband even though the child conceived in his
wife via artificial insemination is not necessarily genetically related to
him.”194 So too could
Cindy, not genetically related to the children, be their legal mother. Other
courts analogized egg (and embryo) donation to sperm donation,195 and, as
Appendix D shows, many states codified this result—divesting egg and
embryo donors of parental rights and rendering the intended (birth) mother the
legal mother.196

Nonetheless,
there was an important difference between Cindy and a man whose wife conceives
with donor sperm. The birth mother who uses donor eggs still claims a
biological, even if not genetic, connection to the child. As the Tennessee
court noted, Cindy claimed maternity based on the biological marker relied upon
in the common law—birth. And that fact was critical to the court’s
judgment.197 Indeed,
parentage laws across the country continue to provide that maternity may be
established by giving birth.198 Unlike men whose wives use
donor insemination, women using donor eggs turn to intent as a supplement to, rather
than substitute for, biological markers of parenthood. For these women,
gestation and birth constitute biological maternity, and thus form the basis of
a claim to parentage. Intention—a social criterion—supports
parental recognition that follows from this biological connection.199

2. Gestational Surrogacy
and Genetic Mothers

In contrast to
the relatively few disputes involving donor eggs, the use of IVF in surrogacy
provoked greater controversy by disturbing the foundational assumption that the
woman giving birth is the child’s mother. When surrogacy first attracted
national attention with New Jersey’s infamous Baby M case200 in the 1980s, the focus
was on traditional surrogacy, in
which the surrogate is both the child’s gestational and genetic mother. Courts and commentators attended to the rights
of the surrogate, not the nonbiological intended mother.201 The intended
mother was simply a legal stranger who, even if surrogacy were accepted, would
have to adopt the child.202

After the New
Jersey Supreme Court repudiated surrogacy in Baby M, many state legislatures considered—and some
passed—bans on the practice.203 At that
time, sex-equality arguments animated the rejection of surrogacy.204 Judges and
lawmakers, as well as scholars and activists, worried about the exploitation of
women, the commodification of women’s reproductive capacity, and the
deprivation of biological mothers’ rights.205

As Elizabeth
Scott has shown, views on surrogacy shifted over time for several reasons. Some
women’s rights advocates pulled back after seeing arguments against surrogacy
invoked to restrict women’s reproductive rights more generally.206 Empirical
work presented a more complicated picture of surrogacy in the United States,
one that bore little resemblance to predictions of coercion and exploitation.207 And, most
critically, the introduction of gestational
surrogacy, in which the woman giving birth is not genetically related to the
child, dramatically reshaped the regulatory framework and social norms governing
surrogacy.208 Not only did
the surrogate have no genetic connection to the child, but the intended mother
could be the genetic mother. In response, courts soon drew distinctions between
traditional and gestational surrogacy in ways that suggested that sex-equality
commitments required acceptance of
the practice.

In its landmark
1993 decision in Johnson v. Calvert,209 the California Supreme Court
recognized a child’s genetic intended mother as the legal mother, over the
objection of the gestational surrogate. The court articulated a doctrine of
intentional parenthood that would reverberate across the country.210 After concluding that “both genetic
consanguinity and giving birth [are] means of establishing a mother and child
relationship,” the court reasoned that “when the two means do not coincide in
one woman, she who intended to procreate the child—that is, she who
intended to bring about the birth of a child that she intended to raise as her
own—is the natural mother under California law.”211 An intent-based
rule, the court concluded, would “best promote certainty and stability for the
child.”212

In the years
that followed, other states recognized intended mothers as legal mothers if
they were also genetic mothers.213 Consider a case from Massachusetts.
Marla Culliton was “incapable of bearing and giving birth to a child without
unreasonable risk to her health.”214 She and her
husband, Steven, entered into an arrangement with Melissa Carroll, a single
woman who agreed to serve as a gestational surrogate. The embryos gestated by
Melissa were created from Steven’s sperm and Marla’s ova, thus allowing the
Cullitons to have their own biological children.215 All three
parties sought the same relief in court, asking that Marla, and not Melissa, be
recognized as the legal mother.216

In an earlier
case, the Massachusetts Supreme Judicial Court had required adoption by an
intended mother in circumstances involving traditional surrogacy.217 Yet with the
new scenario presented by the Cullitons, the court ruled that adoption would
not be required in circumstances of gestational surrogacy where the intended
mother is the genetic mother.218 Marla would be the legal
mother, and Melissa would not.

Ordinarily, the
child born to an unmarried woman—here, Melissa—would not be a child
of a marriage. But Marla’s genetic connection changed that calculus. “While the
twins technically were born out of wedlock,” the court explained, they “were
conceived by a married couple [and] [i]n these circumstances the children
should be presumed to be the children of marriage.”219 Marla did not attain parentage by
virtue of her marriage to Steven, the biological father. Rather, Marla’s
genetic connection allowed her to claim legal motherhood, and thus to claim the
children as children of the marriage. With gestational surrogacy, a child could
qualify as a “child of the marriage” based on the mother’s genetic connection,
even if she did not give birth to the child.

Taken together,
the emerging legal regulation of gestational surrogacy and egg donation made
motherhood a contested biological, social, and legal status. Either gestation
or genetics can be the basis of motherhood, and neither gestation nor genetics
is itself necessary to motherhood. A woman can be a legal mother when she gives
birth to a child genetically related to another woman (an egg donor), and a
woman can be a legal mother when she is genetically related to a child carried
by another woman (a gestational surrogate).220

With the
expansion of women’s reproductive and parental options, motherhood became
contingent on social factors. Faced with two women who could claim a biological
tie to the child—one gestational, the other genetic—courts turned
to intent to determine which biological mother was the legal mother. While the
role of intent in some ways mirrored determinations of legal fatherhood in the
donor-insemination context, the legal mother still enacted parenthood
biologically—either as a genetic progenitor or through pregnancy and
birth.221 Law could preserve motherhood as a
biological status, even as it resorted to social factors to determine its legal
status. While social factors supplanted biological ties in the
donor-insemination context, here they merely supplemented biological factors.

The shifts
charted above occurred as a matter of state parentage law. But in those states
that resisted shifts in maternity provoked by ART, courts turned to state and
federal constitutional law to credit the claims of genetic intended mothers who
had engaged a gestational surrogate. Sex equality, courts reasoned, required
recognition of women who are genetic, but not gestational, mothers. In
particular, parentage for married genetic
mothers followed from the earlier recognition of unmarried biological fathers. In 1994, in Soos v. Superior Court, a woman “unable to have children because of
a partial hysterectomy” had her eggs removed and fertilized with her husband’s
sperm and then engaged a gestational surrogate to carry the pregnancy.222 The Arizona court accepted her challenge to the state’s
commercial-surrogacy prohibition, explaining that, unlike a man, “[a] woman
who may be genetically related to a child has no opportunity to prove her
maternity and is thereby denied the opportunity to develop the parent-child
relationship.”223

A similar
result emerged in Utah in 2002. In J.R.
v. Utah, a federal district court found that giving conclusive effect to
the maternity presumption based on birth violated equal protection by treating
“the genetic/biological father” differently than “the genetic/biological
mother.”224 For the court, the genetic intended mother was analogous
to the unmarried father protected constitutionally in the 1970s.225 By denying her the opportunity to establish
parentage based on her genetic tie and instead deeming the gestational
surrogate the legal mother, Utah’s surrogacy regulation violated the woman’s
fundamental parental rights.226

For some, not
only recognition of the intended genetic mother, but also nonrecognition of the gestational surrogate, promoted sex equality.
As a concurring opinion in Soos
observed:

[The
gestational surrogate’s] contract is to carry the child, not to nurture or
raise it. The [anti-surrogacy] statute thrusts these burdens on her as a duty well
beyond her contract.... [B]y
automatically giving custody of the child to the surrogate, the statute ignores
the very real possibility...that the gestational mother has probably no interest whatsoever in
raising the child....227

Resonating with equality concerns audible in abortion rights
jurisprudence, the concurrence impugned the state’s surrogacy ban for
compelling a woman to assume the social role of motherhood based on the
physical fact of pregnancy.228

Strikingly, the
recognition of genetic mothers as legal mothers—and the corresponding
nonrecognition of gestational surrogates—made reproductive biology less
central to legal parenthood, and thus reduced the salience of a key
justification for gender-differentiated parental recognition. As Part I showed,
when the Court repudiated the common law of “illegitimacy,” it placed a premium
on biological connection and
differentiated between mothers and fathers by resort to reproductive biology.
Now, in the age of ART, the premium on biological connection aided the genetic
intended mother, who claimed a constitutional interest in parenthood that
sprung from her genetic connection to the child. Like the biological father
from the 1970s, the genetic intended mother grasped the opportunity to be a
parent that her biological connection afforded.

Yet, by
focusing on the rights of genetic intended mothers, courts cleaved the biological
process of reproduction from the legal status of motherhood, thus weakening the
justification for differences between motherhood and fatherhood. The genetic
intended mother was like the unmarried biological father. At the same time, the
woman who gave birth—who had always been the legal mother—no longer
necessarily attained that status. The law’s accommodation of ART pulled back on
the gender-differentiated understanding of parenthood that the constitutional
repudiation of “illegitimacy” had authorized in the name of reproductive
biology.

Developments in
New York illustrate this point. In 1992, a court had rejected the idea that
maternity could be adjudicated in the context of gestational surrogacy where
the intended mother was the genetic mother; motherhood was a biological fact
grounded in birth.229 But courts in the state
eventually allowed for maternity determinations for genetic intended mothers.
They moved in this direction by applying sex-equality principles to questions
of parental recognition.230 In 2011, a court
explained: “The issue here is not...whether there is a distinction between
males and females in the birth process, as there most assuredly is one. Rather,
the issue...is whether there is an impermissible
gender-based classification between parents after
the birth of the child.”231 Gestational surrogacy’s
separation of gestation and genetics exposed the ways in which biological
differences in reproduction had
naturalized legal differences in parenthood.
Now, sex-equality principles animated the rejection of reproductive biology as
a justification for gender-differentiated parental recognition.

3. Co-Maternity and
Same-Sex Couples

The parental
recognition of women who separated gestation from genetics furthered
commitments to equality based not only on sex but also on sexual orientation.
Some lesbian couples used IVF to produce “co-maternity,” in which one partner
carries a child conceived with the other partner’s egg. While co-maternity
cases arose only in a handful of states, the courts that addressed the question
found that the birth mother and genetic mother each qualified as legal parents,
even if on different facts they would be surrogates or egg donors.

Each woman
could make a statutory claim to motherhood based on a biological criterion, and
each could point to social factors—such as intent, family formation, and
parental conduct—to translate the biological fact of maternity into the
legal status of parentage.232 Even when courts ruled on statutory
rather than constitutional grounds, they understood their decisions to promote
the equal status of same-sex couples and their children.233 Recognition
of two mothers aligned both with gender-neutrality principles in state
parentage codes and with commitments to sexual-orientation equality expressed
in legislation recognizing the rights of same-sex couples.234

Constitutional
principles also protected the genetic mother’s parental interests. Courts found
that preventing her from proving maternity constituted impermissible sex or
sexual-orientation discrimination,235 and deprived
her of a protected liberty interest generated by her biological connection.236 The genetic
mother was like the unmarried biological father recognized by the Court in the
1970s. By virtue of her biological tie, she was uniquely situated “to grasp the
opportunity” to be a parent.237

C. Egg-Donor Gestational
Surrogacy

This Part has
shown how courts and legislatures responded to ART in ways animated by emergent
commitments to sex and sexual-orientation equality, yet did so by reasoning
within frameworks of parental recognition organized around marital and
biological relationships. With donor insemination, judges and lawmakers
elaborated the capacity of legal fatherhood inside marriage to capture social
parent-child relationships. Men, and eventually women, derived parentage by
virtue of marriage to the biological mother. But outside marriage, intended
parents found themselves excluded. Nonbiological coparents—a regular
feature of same-sex-couple-headed families—struggled to gain parental
rights.

With IVF,
courts and legislatures again responded in ways that furthered equality
principles. Women, in both different-sex and same-sex couples, could achieve
parenthood without giving birth or in the absence of a genetic connection to
the child. Yet even as judges and lawmakers muddied understandings of maternity
in both marital and nonmarital families—looking to social factors to make
legal determinations of parentage—they preserved biological understandings
of motherhood. Intended mothers pointed to their own biological connection to
the child, whether gestational or genetic, to claim maternity.

From this
perspective, surrogacy’s normalization had not resulted from a new perspective
on the nonbiological intended mother, but rather from her disappearance. The
intended mother from Baby M had been
replaced by the genetic intended
mother from Johnson—a woman who
could combine parenthood’s biological and social dimensions. As this Section
shows, intended parents who engaged two women—an egg donor and a
gestational surrogate—struggled to capitalize on the law’s acceptance of
gestational surrogacy. Accordingly, the remainder of this Part focuses on
failed claims to parental recognition.

This Section
first shows how, in situations involving different-sex couples, courts and
legislatures failed to see the nonbiological intended mother, who lacked a
genetic or gestational connection to the child, as a legal mother. The intended
mother who could claim a genetic, but not gestational, tie to the child had successfully
analogized herself to a genetic father. Now, the intended mother with neither a
genetic nor gestational tie to the child attempted to analogize herself to the
man whose wife gives birth to a child conceived with donor sperm. Within the
gendered logic of the marital presumption, however, judges and lawmakers
refused to allow her to derive parentage by virtue of marriage to the
biological father or on the basis of her consent to assisted reproduction. And
while reproductive biology no longer justified gender-differentiated parentage
when courts and legislatures confronted genetic intended mothers who had
engaged gestational surrogates, it reemerged as a basis on which to reject the
sex-equality claims of nonbiological intended mothers denied parental
recognition.

After
addressing egg-donor gestational surrogacy involving different-sex couples,
this Section turns to male same-sex couples, who increasingly relied on
gestational surrogacy to have children. Nonbiological fathers in same-sex
couples found themselves in a similar position to nonbiological mothers in different-sex
couples. Female same-sex couples had seized on marriage as a pathway to
recognition for the nonbiological mother, but male same-sex couples found
little help in the rules of marital parentage. While the nonbiological mother
in a same-sex couple derives parentage by virtue of marriage to the biological
mother, the nonbiological father in a same-sex couple does not derive parentage
by virtue of marriage to the biological father. In most states, nonbiological
fathers in same-sex couples cannot establish parentage without adoption, even
when they are married.

Observing the
treatment of both nonbiological mothers in different-sex couples and
nonbiological fathers in same-sex couples brings to the surface a key feature
of the modern parentage regime: the law continues to organize the family around
a biological mother. This aspect of parentage law has troubling implications in
terms of both gender and sexual orientation.

1. Different-Sex Couples
and Nonbiological Mothers

As Appendix E
shows, in a minority of states, surrogacy statutes and appellate decisions
expressly recognize nonbiological mothers engaging in egg-donor gestational
surrogacy as parents without requiring them to adopt their children.238 The intended parents can be the
legal parents at birth, and neither the surrogate nor the donor has parental
rights. But family law regimes in most states have not developed in this way.
Instead, while genetic mothers can attain parentage
without adoption, women without a biological or genetic connection ordinarily
cannot.239 The gestational surrogate, who is not the legal mother when the
intended mother is the genetic mother, is
the legal mother when the intended mother uses a donor egg.

Compare two
decisions from Indiana. In In re Infant
R., the court allowed the gestational surrogate to disestablish maternity
when the intended mother was also the genetic mother.240 Whereas the
trial court had denied the request because “the birth mother is the legal...mother,” the appellate court reversed
in light of the state’s “interest in correctly identifying a child’s biological
mother.”241 In a
subsequent case, In re Infant T., the
court refused to disestablish a gestational surrogate’s maternity when the biological
father’s wife—the intended mother—was not genetically related to
the child and instead had used an egg donor.242 The court
concluded: “It would not be in the best interests of the child, and would be
contrary to public policy, to allow the birth mother to have the child declared
a child without a mother.”243 Of course, there was a
mother to raise the child—but one without a gestational or genetic
connection to the child.244

While the
Indiana cases focused on the status of gestational surrogates, nonbiological
intended mothers have joined surrogates to challenge this regime. Consider
developments in New Jersey in the decades since Baby M. In the context of gestational surrogacy, New Jersey allows
adjudication of parentage for genetic intended mothers but continues to require
adoption by nonbiological intended mothers.245 In In re Parentage of a
Child by T.J.S. & A.L.S.,
a married woman, “unable to carry a child to term[,]...turned to the process of in vitro
fertilization,” in which her husband’s sperm fertilized the ova of an anonymous
donor, and the resulting embryos were carried by a gestational surrogate.246 The intended
parents sought a declaration of parentage from the court, and were joined by
the gestational surrogate. Neither the intended mother nor the surrogate wished
to resort to adoption, and instead desired a timely assignment of rights and
responsibilities in ways that reflected their expectations.247

In 2011, the
New Jersey appellate court held in T.J.S.
that the intended mother could not establish parentage because state law
provides for a declaration of maternity only for a woman who is “biologically”
or “gestationally” related to the child.248 Unlike fathers, who would be
presumed legal parents based on their marriage to the biological mother, mothers
could not derive parentage from marriage to the biological father. Accordingly,
the parentage law “requires adoption to render [the intended mother] the mother
of [the child].”249

The T.J.S. appellate court rejected the
nonbiological intended mother’s constitutional challenge to her treatment based
on reasoning that reflects the biological, gender-differentiated framework
erected in the constitutional repudiation of “illegitimacy.” The court turned
down the nonbiological mother’s due process claim, explaining that she “does
not have parental rights to the child...because of the absence of any
biological or gestational connection to the child.”250 Rejecting
her equal protection claim—which depended on her comparison to
nonbiological fathers in the donor-insemination context—the court simply
declared that “the complained of disparate treatment is not grounded in
gendered constructions of parenthood but in actual reproductive and biological
differences.”251 By
collapsing the biological aspects of reproduction with the social aspects of
parenting, the court situated the state’s regulation of parenthood as an
innocuous and natural response to the biological processes of reproduction.

The New Jersey
Supreme Court affirmed the decision in a 2012 per curiam order.252 A concurring
opinion justified the denial of parental recognition by emphasizing the
necessary relationship between motherhood and biology, reasoning that “the
status of maternity is grounded on either a biological or genetic connection to
the child, failing which the Legislature has decreed that the status can only
be achieved through adoption.”253 This regime did not offend
constitutional equality principles in the eyes of the concurring justice, who declared,
without elaborating, that the distinction between nonbiological fathers
(recognized by law) and nongenetic, nongestational mothers was justified by
“actual physiological differences between men and women.”254

While legal
fatherhood’s nonbiological capacity inside marriage had expanded, legal
motherhood largely remained a biological status—albeit a more complicated
one. When a woman engages a gestational surrogate and uses a donor egg, the law
often fails to treat her as a legal mother. Unlike a married father of a child
conceived with donor sperm, she does not derive parentage by virtue of consent
to assisted reproduction or marriage to the biological father. At the same
time, the gestational surrogate, who avoids legal motherhood when the intended
mother is the genetic mother, now has legal motherhood imposed on her.

2. Same-Sex Couples and
Nonbiological Fathers

Nonbiological
mothers in different-sex couples are not the only ones who struggle to achieve
parentage when they engage in egg-donor gestational surrogacy. Nonbiological
fathers in same-sex couples do as well. Gay male couples engaging in
gestational surrogacy necessarily include a nonbiological intended parent. Of
course, the nonmarital parentage regime organized around biological connection
disadvantages same-sex couples relative to different-sex couples. But, as this
Part has shown, marriage offered relief to lesbian couples. Given the
family-based equality that marriage equality is assumed to furnish—and
given judicial statements that “the child of either partner in a married
same-sex couple will be presumed to be the child of both”255—one
might expect male same-sex couples to also gain dual parentage by virtue of
marriage. Much follows simply from the determination that a child is “a child
of the marriage.” Parties to the marriage, even if not biologically related to
the child, have standing to assert parental rights, including rights to
custody.

Yet, without a
biological mother in the marriage, male same-sex couples do not technically
have marital children. Parentage presumptions applicable to same-sex couples replicate
the gender-differentiated rules applicable to different-sex couples.
Presumptions of parentage for the second parent, even when they apply to both
women and men, relate to that person’s marriage to “the woman giving birth”256 or the “natural
mother.”257 Accordingly,
a woman can derive parentage by virtue of her marriage to the biological
mother, as parental regulation in lesbian couples makes clear. But a man can
only derive parentage by virtue of marriage to the biological mother, not the
biological father. Without biological ties, men in same-sex couples and women
in different-sex couples find themselves in the same position: neither can
establish parentage without adoption.

The scant case law
on the status of nonbiological fathers in same-sex couples affirms the
gestational surrogate’s legal parentage and authorizes the nonbiological
father’s nonrecognition. Around the same time that the New Jersey courts denied
recognition to the nonbiological mother in T.J.S.,
they also denied recognition to a nonbiological father in a same-sex couple who
had engaged in egg-donor gestational surrogacy. In A.G.R. v. D.R.H., a same-sex couple who were married under
California law and registered domestic partners under New Jersey law sought to
have biologically related children.258 One man’s
sperm was used to fertilize donor eggs, and the other man’s sister served as
the gestational surrogate.259 The surrogate sought
parental rights after conflict developed with her brother and his partner. By
the time the court was set to determine whether the gestational surrogate was a
legal parent, the two men were parenting the children. In fact, the
nonbiological father was the primary caretaker.260 Yet the
court treated the nonbiological intended father as a nonparent and instead
credited the gestational surrogate’s claim to parental recognition. Strikingly,
the court found immaterial the distinction between traditional and gestational
surrogacy—the very distinction that had reshaped the law in cases
involving a genetic intended mother. After quoting the rejection of surrogacy
in Baby M, a traditional surrogacy
case, the court asked, “Would it really make any difference if the word
‘gestational’ was substituted for the word ‘surrogacy’ in the above quotation?”261 It quickly answered, “I think not.”262

In the
contemporary regulatory landscape, it would be exceedingly difficult to
maintain this position where the genetic mother is the intended mother. In that
context, in most jurisdictions (including New Jersey263), the difference between gestational
and traditional surrogacy marks the difference between parent and nonparent
status. Yet, for the nonbiological gay father, the surrogate’s
gestation—increasingly immaterial where the intended mother is the
genetic mother—produces legal motherhood and justifies the denial of his
parental status. Like nonbiological intended mothers in different-sex couples,
nonbiological intended fathers in same-sex couples cannot claim parentage by
virtue of a relationship to the biological father. They must, if possible,
adopt the child. As Appendix E suggests, the treatment of male same-sex couples
in New Jersey is consistent with the approach of most other states.264

As with intended
mothers in different-sex couples engaging in egg-donor gestational surrogacy,
intended fathers in same-sex couples have not launched successful
constitutional challenges to their treatment. The nonbiological father is not
understood to possess a constitutionally protected liberty interest in
parenthood. And, since women and different-sex couples face similar hurdles,
the nonbiological father’s treatment is not deemed to offend sex or
sexual-orientation equality principles.265

Ultimately,
male same-sex couples are excluded by a parentage regime that grounds
parenthood in biological connection outside marriage and derives nonbiological
parenthood inside marriage only from marriage to a biological mother. Ordinary
parentage rules simply do not permit dual parentage for male same-sex couples
absent adoption.266 The few states that have
allowed this result have done so through a separate set of rules regulating
gestational surrogacy.267

3. Biological Mothers and
the Legal Family

This Part’s
exhaustive examination of the law’s regulation of parental relationships formed
through ART reveals a critical dynamic: even in an age of sex and sexual-orientation
equality, courts and legislatures continue to treat biologicalmothers as the
parents from whom the legalfamily necessarily springs. This
treatment is rooted in the marital presumption and is carried forward by the
presumption’s adaptation to ART. Traditionally, the woman giving birth is the
legal mother, and, if she is married, her husband is the legal father. Law has
adapted this reasoning to different-sex and same-sex couples using donor insemination.
And this reasoning has reached different-sex and same-sex couples using donor
eggs and embryos when the intended mother is the birth mother.

The gendered,
heterosexual legacy of marital parentage—parentage by virtue of marriage
to the woman giving birth—is justified by resort to the gendered,
heterosexual logic of reproductive biology. But law’s accommodation of ART
reveals the instability of that very logic. Courts are willing to deviate from
the gendered logic of reproductive biology to recognize the genetic mother who
engages a gestational surrogate to carry her child. Within a regime that prioritizes
biological ties, contemporary courts view the genetic mother like the biological
father protected by the Court in the 1970s. The differential treatment of
genetic mothers and fathers poses an equality problem. Yet, in considering the
claim of a nonbiological mother who engages in egg-donor gestational surrogacy,
reproductive biology persists as a justification to reject her claim to parental
recognition. Courts do not see an equality problem when law recognizes a
nonbiological father as a legal parent but withholds recognition from a nonbiological
mother.

In either of
these cases, one could imagine courts invoking reproductive biology to justify
the differential treatment of mothers and fathers. In fact, in some of the
earliest gestational surrogacy cases, courts rejected the claims of genetic
intended mothers based precisely on grounds of reproductive biology; motherhood
resulted from the specific act of birth.268 But today,
courts disclaim reproductive biology as a basis to withhold recognition from a
genetic mother. Indeed, recall that in accepting gestational surrogacy, the Massachusetts
Supreme Judicial Court deemed the children of the genetic intended mother
“children of [the] marriage.”269 The mother’s
genetic—not gestational—connection produced marital children. Yet a
father’s genetic connection does not produce marital children, and therefore
does not offer a route to parentage to a nonbiological mother. Reproductive
biology continues to justify treating the claims of nonbiological mothers
differently than the claims of nonbiological fathers.

Same-sex
couples, who are not similarly situated to different-sex couples with respect
to biological parenthood, remain particularly vulnerable in a nonmarital
parentage regime organized around biological connection. Marriage furnishes
space for the legal recognition of nonbiological parents, but, with its
gender-differentiated legacy, offers relief to only some same-sex parents. Nonbiological
parents in female same-sex couples attain parentage by virtue of marriage to
the biological parent, but this is not true in male same-sex couples. For a man
or woman married to a biological mother,
biological connection is not necessary for legal parenthood; that man or woman
is deemed a legal parent by virtue of marriage. But for a man or woman married to a biological father, the lack
of a biological connection excludes that individual from legal parenthood.

From this
perspective, it becomes clear that the shift toward nonbiological parenthood
has occurred along only one axis: legal “fatherhood” can capture nonbiological
parenthood, but legal “motherhood” cannot. And the collapse of gendered
parental statuses has occurred in only one direction: women can be legal
“fathers,” but men cannot be legal “mothers.” On this view, biological mothers
are indispensable—essential to the legal family. In contrast, biological
fathers are replaceable—by men or women who have no biological connection
to the child.270

* * *

As this Part
has shown, the law has traveled a great distance from the common-law regime
that defined parentage through the gender-hierarchical and heterosexual
institution of marriage. Yet even after waves of liberalization, troubling
asymmetries persist. The law continues to anchor parental recognition in
biological connection and to organize the legal family around a biological
mother. This leads courts and legislatures to treat men’s and women’s claims to
parental recognition differently and to privilege different-sex over same-sex
couples.271 The next Part focuses on the
profound harms that this parentage regime inflicts on those who break from
traditional norms of gender and sexuality.

iii. selective harms

Within the
contemporary parentage regime, those who believe they are parents on social
grounds, including those who have been parenting their children for many years,
may be denied parental status. Of course, it is difficult to imagine a system
that satisfies all those who make claims to parental recognition. But it is
especially troubling that the law rejects claims in ways that preserve
longstanding forms of inequality. This Part turns to the concrete burdens
imposed by the current regime and shows how the uneven distribution of those
burdens reflects traditional judgments about gender, sexuality, and parenthood.

A. The Practical and Expressive
Harms of Nonrecognition

As a practical
matter, lack of parental recognition shifts individuals out of the ordinary
parentage regime and into the adoption scheme.272 While for
some the adoption process may be relatively straightforward, for others it
brings risk and uncertainty. The process can be “lengthy and costly”273 and may be
prohibitively expensive for some parents.274 For those
who can afford it, they may, as one court observed, “hav[e] to wait as long as
six months” to gain custody of their child.275 The
process itself can be intrusive, subjecting those who have coparented for many
years to invasive home studies.276 As a federal court in Indiana
observed in the context of same-sex parents, the nonbiological parent “is
required to undergo fingerprinting and a criminal background check in addition
to submitting her driving record [and] her financial profile.”277 The home
study examining the couple’s relationship “requires them to write an
autobiography and to discuss their parenting philosophy, and requires them to
open their home for inspection.”278 The costs in
Indiana can exceed $4,000.279

Resort to
adoption harms not only parents but children. Given the timing of adoption,
those who believe they are parents lack parental rights at a particularly
critical point—the beginning of the child’s life. As one nonbiological mother who had engaged in
gestational surrogacy reported in legislative testimony in Washington State: “I
had no parental rights for the first five months of [my daughter’s] life.”280 As the
Massachusetts Supreme Judicial Court observed, “[I]n the event of medical
complications arising during or shortly after birth,” the intended parent would
not have legal authority over the child’s treatment.281 “The duties
and responsibilities of parenthood (for example, support and custody) would lie
with the gestational carrier,” who “could be free to surrender the [child] for
adoption.”282 Young
children may struggle when their parents’ bonds are uncertain and insecure.283 As intended parents and a
gestational surrogate in New Jersey explained, adoption does not provide an
adequate substitute for parentage by operation of law “because the extended
legal process would place the legal status of the child in limbo.”284 Children may
be harmed later in life as well. Older children whose parents must adopt them
may question the status and stability of their family.285

Many of those
who believe they are parents on social grounds but are denied legal recognition
will successfully navigate the adoption process and emerge, eventually, with
legal rights to their children. The harms of the adoption process, though, are
not only material but also dignitary. Requiring adoption in this setting
communicates to the parent and child that they are not family and, in this
sense, “fails to account for the parent-child relationship that already exists
in fact.”286 Those
parents with biological ties are seen as real
parents. Those without biological ties—even those engaging in the same
forms of ART—are cast as parental substitutes who must formally replace
the biological parents through adoption. As a California court explained:
“Parents are not screened for the procreation of their own children; they are screened for the adoption of other people’s children.”287 Resort to
adoption is based on the notion that “a child who is born as the result of
artificial reproduction is somebody else’s child from the beginning.”288

Of course, it
is not only those who believe they are parents on social grounds that are
harmed. The law may recognize a gestational surrogate as a legal mother, even
though she neither desires such recognition nor actually forms a parental
relationship.289 Law may also
impose parental responsibilities on a sperm donor if he donates sperm for the
insemination of an unmarried woman,290 even if he
and the mother agreed that he would not be a parent and even if he is not
acting as a parent.291 Just as the decision to
form a parent-child relationship is enormously meaningful and consequential, so
is the decision not to form a
parent-child relationship.292

Adoption
requirements thus intervene in ways that reproduce normative distinctions
between biological and nonbiological parents.293 As Elizabeth
Bartholet has persuasively shown, the regulation of adoption expresses
suspicion of nonbiological parents in ways that support traditional views about
the biological family.294 While Bartholet is skeptical of
commercial surrogacy,295 her insights on adoption
shed light on contemporary approaches to gestational surrogacy. In surrogacy
cases featuring nonbiological intended parents, courts express concerns about
“strangers” raising children unrelated to them.296 They invoke
adoption as a check on nonbiological parents’ fitness297—even
though fitness is not employed as a check on biological parents using ART. The
point here is not that the government lacks an interest in children’s welfare
that justifies attention to parental fitness; instead, it is that the
government deploys this interest selectively. The check on parental fitness
does not apply whenever gestational surrogacy is involved—that is,
whenever the woman giving birth surrenders the child—but rather only when
the intended parent is not the genetic parent.

While adoption
will ultimately yield legal parentage for some, it may be impossible for
others, meaning that legal recognition remains out of reach. Terminating the
rights of the individual presumed by law to be the parent may not be feasible.298 Or, the
relationship to the legal parent may end, leaving the nonbiological parent at
the mercy of her former partner.299 Or, the
parents may not be married and may live in a state that allows only stepparent,
and not second-parent, adoption.300

Some parents,
ignorant of the need to adopt their own child, may not even pursue adoption.
This is especially likely when both parents, whether married or not, are listed
on the child’s birth certificate, and thus mistakenly believe they have been
definitively identified as legal parents.301 It is also
likely when the nonbiological parent is married to the biological parent and
believes she attains parentage by virtue of the marriage.

For instance, a
woman may believe that if her husband is the biological father, she would be
the legal parent. Consider a traditional surrogacy case from Connecticut. In Doe v. Doe, when the couple divorced,
the biological father claimed that his wife was not the child’s legal mother
because she never adopted the child, even though she raised the child for
fourteen years and the surrogate’s rights had long been terminated.302 The
Connecticut Supreme Court—constrained by a biologically grounded,
gender-specific marital presumption—held that even though the child was
conceived and born during the marriage, she was not a “child of the marriage”
because the wife was not the biological mother.303 Lack of a
biological tie would not have prevented the husband from making parental claims
upon divorce if his wife were the biological mother, but the wife’s lack of a
biological tie—even when accompanied by years of parental
conduct—placed her outside the bounds of the parentage regime.

Without legal
recognition, parent-child relationships may be destroyed. Again, consider Russell v. Pasik, in which an unmarried
lesbian couple used the same donor sperm to have four children, with each woman
giving birth to two children.304 Even though, as the court
explained, “[t]he four children were raised by both women jointly as a family
unit,”305 Russell was
able to unilaterally end the relationship between Pasik and the two children to
whom Pasik did not have a biological connection.306 The
parent-child relationships were legally severed, left to the whims of Russell,
the biological mother.

This approach undermines
children’s wellbeing.307 In Russell, the children themselves were harmed by the loss of their
parent and their siblings, since each woman would leave the relationship with
rights to only her biological children. Law generally seeks to protect and
promote stable and continuing parental relationships for children.308 Yet here the law threatens such
relationships.

Courts
themselves appear to recognize the gravity of the problems encountered within
the current regime and attempt to avoid the most immediate and severe
consequences. The court in Doe, for
instance, interpreted state statutes to allow the nonbiological mother to
assert a third-party claim to custody based on the child’s welfare.309 The parental
relationship could continue even as the mother was denied parental status.

In cases where
the family remains intact, courts have resorted to custody determinations that
in practice protect the nonbiological parent’s bond.310 For example,
after recognizing the biological father and the gestational surrogate as the
legal parents in A.G.R., the New
Jersey court vested primary custody in the biological father—and,
therefore, his same-sex partner as well.311 The nonbiological
father, the court observed, “is essentially a stay at home dad.”312 The custody
determination, rather than the parentage determination, allowed this
arrangement to persist. The man who formed a parent-child relationship on
social but not biological grounds lived in the house with the legal parent granted
primary custody, but he received no legal recognition himself. His relationship
was less secure, dependent on continued cohabitation with the biological
father. Even then, his lack of recognition could, as other nonlegal parents report,
pose ongoing practical problems, for instance when he had “to sign something
for the kids from school or at the doctor’s office.”313

The harms of
nonrecognition are not only practical but expressive. Courts routinely term
those who serve as parents but lack biological ties “nonparents”314—casting
them as third parties who are otherwise strangers to the family. As one gay
father put it, “People always ask, ‘Who are you? Are you his dad?’ Legally, we
are not family, but in reality we are.”315 Legal
treatment may shape parental experiences. In qualitative studies of gay men
parenting, those parents lacking legal status not only experienced “less
validation and support from the outside world,” but also reported feeling
“insecure about [their] role in the family.”316 They found nonrecognition
“demeaning”317 and reported
frustration with “being the invisible dad.”318

B. Sexuality- and Gender-Based
Judgments

As Russell, Doe, and A.G.R. suggest,
the burdens imposed on social parent-child bonds are not distributed evenly.
Those who break from traditional norms governing gender, sexuality, and
family—by not marrying, by separating motherhood from biological ties, or
by forming a family with a same-sex partner—are channeled into adoption
or denied parental status in ways that others are not. Often, courts and
legislatures engage in genuine but failed attempts to protect the rights of
women and of same-sex couples. At times, though, the regulation of ART and the
law of parental recognition serve as sites for active resistance to gender and
sexual-orientation equality.

1. Biology, Marriage, and
Sexual Orientation

As Part I
explained, courts and legislatures expressly protected biological relationships
to repair the wrongs perpetrated by a system of marital privilege. Unmarried
parents could derive parental rights from their biological connection. But
parenthood’s liberalization protected parent-child relationships that came out
of heterosexual family formation. While nonbiological parent-child
relationships are legally vulnerable as a general matter, some families are
more likely than others to experience this vulnerability. As New York’s
highest court recently acknowledged, “Under the current legal framework, which
emphasizes biology, it is impossible—without marriage or
adoption—for both former partners of a same-sex couple to have standing
[to seek custody], as only one can be biologically related to the child.”319For same-sex couples, the focus on
biological connection works in conjunction with marital privilege to marginalize
their nonmarital families.

Even as
marriage has offered space for some same-sex couples’ nonbiological ties,
biological ties retain importance within the gender-differentiated framework of
marital parentage. And some seek to expand and entrench biological norms in
ways that threaten same-sex parents both inside and outside marriage.
Biological connection can present itself as a natural and innocuous parenting
norm, but appeals to biological parenthood can both incorporate and mask
judgments about same-sex family formation.

Consider
advocacy against ART by the Institute for American Values (IAV), the
organization headed by leading social conservative advocate David Blankenhorn.320 Elizabeth
Marquardt, the director of IAV’s Center for Marriage and Families, argues that
because “two persons in a same-sex couple cannot both be the biological
parents,” research demonstrating the benefits of children being raised by a “biological mother and father” is
relevant to debates over “same-sex marriage and parenting.”321 For Marquardt, the biological and
social dimensions of parenthood should be united. She opposes “family forms
that even before conception intentionally deny children a relationship with
their biological father or mother.”322 Importantly,
Marquardt accepts ART to create families in which a mother and father raise a
child biologically related to each of them—for instance, gestational
surrogacy where the genetic mother is the intended mother. She carefully
preserves ART deployed in service of the traditional family with a biological
mother and father, while rejecting ART that disturbs that paradigm by
facilitating families headed by same-sex couples.323

This view finds
expression in the law. After Obergefell,
for example, Louisiana authorized gestational surrogacy but only in limited
circumstances—when “the parties who engage the gestational surrogate not
only are married to each other, but also create the child using only their own
gametes.”324 As the law expressly
states, only those “intended parents can bypass the current need to go through
extended proceedings to adopt their own child.”325 The law
authorizes gestational surrogacy—and its separation of pregnancy from
motherhood—in ways that necessarily exclude same-sex couples, even when
they are married. In this regime, it is not sex-based reproductive differences
that matter but biological ties that allow for the maintenance of the
gender-differentiated, heterosexual family.326

As the
Louisiana legislation suggests, arguments from biological parenting can entail
both a rejection of same-sex family formation and an appeal to dual-gender
parenting.327 Families
headed by same-sex couples fail as “motherless” and “fatherless.”328 These views,329 which were
expressed but repudiated in the conflict over same-sex marriage, retain
purchase in conflicts over parenting.330 In fact, they have become a potent
way to resist the implications of marriage equality.331

2. Marriage, Biology, and
Gender

Approaches to
ART—and specifically gestational surrogacy—suggest that, even as
courts and legislatures liberalized motherhood and recognized same-sex parenting,
they sustained biologically grounded, gender-differentiated views of
parenthood. Nonbiological mothers in different-sex couples and nonbiological
fathers in same-sex couples struggle for parental recognition, even when they are married to the biological
parent. If these parents fail to adopt their children, they may be deemed
legal strangers even after raising the children. These dynamics may reflect
judgments about women who separate motherhood from biological connection, as
well as men who fill roles traditionally demanded of women.

Those who are
invested in gender-based family roles and
their biological basis often oppose surrogacy regardless of its form. Both
traditional and gestational surrogacy challenge the connection between the
physical fact of pregnancy and the social role of motherhood.332 Through this lens, surrendering the
child, even when the woman is not genetically related, “is contrary to the
natural instincts of motherhood.”333 But most
states have departed from this view and instead have increasingly accommodated
gestational surrogacy where the intended mother is the genetic mother. That
woman is the legal mother, and the gestational surrogate is not.

Gestation and
birth—the sex-based reproductive features that licensed legal
distinctions between motherhood and fatherhood—no longer inevitably produce
the social role of motherhood. Genetics—itself not a sex-based reproductive
difference—can ground legal motherhood. Yet in most states, the surrogate’s
nonrecognition occurs only when the
intended mother is the genetic mother. With egg-donor gestational surrogacy,
birth reemerges as necessarily producing legal motherhood—with no change
in the surrogate’s role or in the intentions of the parties.

Consider Soos, where the court required Arizona
to recognize the genetic mother as the legal mother and ordered nonrecognition
of the gestational surrogate.334 Indeed, the concurring
opinion pointed out how the surrogacy ban foisted motherhood on the gestational
surrogate based solely on the physical fact of pregnancy.335 Yet Arizona
law continues to distinguish egg-donor gestational surrogacy. The absence of a
genetic intended mother blocks the gestational surrogate’s attempt to avoid
legal motherhood, and the intended mother must adopt the child.336

Even in the
face of legislation that appeared to authorize egg-donor gestational surrogacy,
the state of Connecticut sought to require termination of a gestational
surrogate’s parental rights and subsequent adoption by the nonbiological
intended parent.337 In unsuccessfully
defending its position at the Connecticut Supreme Court, the state made the
uncontroversial observation that “a mother contributes to the development of
the child in her womb.”338 But it then linked the
physical contribution of the surrogate to an inevitable legal status of
motherhood—because the gestational surrogate “form[s] a bond with [the
child in her womb],” her “role in bringing the child into the world is sufficiently
consequential to require her registration.”339 Connecticut
defended its refusal to recognize nonbiological intended parents by appealing
to the connection between pregnancy and motherhood. Yet, in that very litigation,
the state admitted that it did not oppose parentage judgments when the intended
parent was the genetic mother.340

If the biology
of reproduction can be detached from the social role of motherhood, it is
difficult to maintain distinctions between the two forms of gestational
surrogacy. The law’s differential treatment of genetic intended mothers and
nonbiological intended mothers suggests that biological connection generally—whether
gestation or genetics—creates maternal attachments. At stake is the
maintenance of motherhood as a biological status—not the specific relationship
between pregnancy and motherhood.

The act of
surrogacy challenges the “maternal instinct,” and instead suggests that a
mother’s attachment is constructed. The genetic intended mother, whom law
recognizes, can maintain a connection between the biological and social aspects
of motherhood, even if not through pregnancy. The nonbiological intended
mother, in contrast, renders maternal attachment the product of social
arrangements, rather than biology.341 The
surrogate and the nonbiological intended mother reveal the mother-child bond to
be in important ways like the father-child bond—volitional and
constructed.342

Through this
lens, the law of parental recognition may reflect stereotypes that view the
social role of motherhood as flowing naturally from biological ties.343 A mother’s biological tie to her
child—established most often through gestation but also through
genetics—both defines and limits her parental status.344 While the
legal status of motherhood derives solely from biological connections, biological
connections may, but need not, determine the legal status of fatherhood.345 One can be a father purely on social
grounds if, for instance, he forms a family with the mother and the child.346 On this
view, the mother remains the parental figure who establishes the family, while
the father is a secondary, optional parent, potentially supplementing but
certainly not replacing the mother.347

The law’s construction of parenthood situates women as biologically connected not
only to reproduction but also to child-rearing348—itself
a form of uncompensated labor that drastically shapes a woman’s life
opportunities.349While biological fathers can be displaced by men and women who lack biological
ties, the law attempts to ensure the biological mother’s presence. From this
perspective, women—naturally, inevitably—bear the burdens of child-rearing.350

Views that tie
motherhood to biology not only negatively affect women; they also harm men by
viewing fatherhood as derivative of motherhood and secondary as a parental role.351 While these
stereotypes retain purchase within various domains of family law,352 as well as
outside of family law,353 they have specific effects
on parentage in same-sex couples. Female same-sex couples may reaffirm gender
stereotypes that see women as mothers and caretakers even as they challenge
heterosexual norms,354 but male same-sex couples
disrupt norms of both heterosexuality and gender that have structured family relationships.355 By forming a
family that excludes a mother, these men position fathers as primary
parents—assuming the social role traditionally demanded of women as a
matter of biology.356

Gay men
engaging in surrogacy challenge the centrality of the mother-child relationship
in ways that different-sex couples engaging in surrogacy do not.357 Their
parental recognition, and the corresponding production of “motherless”
families, threatens gender differentiation—not merely biological sex
differentiation. Consider A.G.R., the
New Jersey decision recognizing the gestational surrogate, and not the nonbiological
father, as a legal parent.358 The court quoted Baby M to support the unique importance
of the mother-child relationship, objecting that “[t]he surrogacy contract...guarantees the separation of a child
from it[s] mother.”359 A mother, on this view, is
a necessary part of a family. There was no other mother to fill the role left
open by the surrogate. Genetic intended mothers had emerged since Baby M’s rejection of traditional
surrogacy as viable candidates to supplant the surrogate.360 But fathers
engaging in egg-donor gestational surrogacy simply could not replace the
mother.

Similar
concerns emerge in cases involving single fatherhood. While donor insemination
and IVF have facilitated the creation of legally recognized single-parent
families for women, men struggle to form single-parent families through ART.
Like gay male couples, single fathers engaging in egg-donor gestational
surrogacy seek to displace mothers. Texas, for instance, allows gestational
surrogacy (including egg-donor gestational surrogacy) for married
(different-sex) couples,361 but closes paths to single
fatherhood through gestational surrogacy.362 A Texas
appellate court refused to declare that the gestational surrogate with no
genetic connection to the children is not a legal parent, even though Texas law
readily allows this result when a married different-sex couple commissions a
surrogate. The court noted that the biological father “seeks a declaration that
he is the sole parent and the children have no mother.”363 Given that
the egg donor was not seeking motherhood, the court expressed concern that
“[t]here is no other woman claiming to be the mother.”364 Indeed, some
courts have refused to allow women to relinquish parental rights if no other
woman is seeking to adopt the child.365

These results
are troubling. They make paths to parenthood more difficult and fraught for
those who break from norms that have traditionally structured family life, and
they reiterate views about motherhood and fatherhood that harm both women and
men. To remedy these harms, the next Part considers how to forge a parentage
regime that vindicates gender and sexual-orientation equality and thus more
fully and consistently values the social bonds of parenthood.

iv. reconstructing parenthood

Even as the law
has grown to accommodate an increasingly diverse range of parental
configurations, many who believe themselves to be parents on social
grounds—because they are the intended parent, function as a parent, or
are married to the biological parent at the time of the child’s
birth—discover that in the eyes of the law they are in fact strangers to
their children. These problems cannot be wholly eliminated; courts and
legislatures will continue to face difficult questions about when to recognize
individuals as parents. Nonetheless, in working through questions of parental
recognition, solutions can be devised so that the burdens do not fall
systematically on those historically subject to exclusion. This Part suggests
how the law might better realize egalitarian commitments in parentage, not only
with respect to families formed through ART but across the wider swath of
families in contemporary society.

First, this
Part sets out the principles to guide reform. Then, it illustrates how such
principles can shape family law reform, primarily through state legislative
action but also through judicial decisions. Finally, this Part contemplates a
future in which the parentage questions at the heart of this Article enter federal
courts, and considers how courts might reason about those questions from a
constitutional perspective.

Of course, the
role of federal courts in the law of parental recognition is far from clear. Recent
shifts in family law have featured federal courts playing a dialogic role. In
the conflict over same-sex marriage, federal courts were critical but were not
the primary actors for many years.366 Instead,
change occurred at the state level, as legislatures reformed family law regimes
and courts applied state constitutional principles to strike down laws
restricting same-sex family formation. Those developments shaped the
constitutional stakes in conflicts that would enter federal courts.367 So too in
the domain of parentage may developments at the state level eventually produce
and structure federal constitutional conflict.

A. Equality Commitments and
Recognition of Parenthood’s Social Dimensions

There is broad
consensus that the law of parental recognition should conform with principles
of equality, but critical differences over the meaning of equality in this
setting persist. As this Article demonstrates, merely providing equal treatment
under existing rules does not furnish equality based on gender and sexual
orientation.368 Instead,
equality requires treating those traditionally excluded from the parentage
regime as full participants.369

What does it
mean in the law of parental recognition to treat those who break from
conventional norms of gender and sexuality as belonging from the outset? In
practical terms, equality requires law to value social as well as biological
contributions in recognizing parents—and to do so in more transparent and
evenhanded ways. Proceeding in this way is necessary to ensure that women
engaged in nontraditional acts of parenting and gays and lesbians forming
families with children—both of whom ground parental claims in social
contributions—have their parent-child relationships recognized and respected.370

Same-sex family
formation ordinarily features nonbiological parent-child relationships.
Accordingly, a parentage regime anchored in biological connection does not
ensure equality for same-sex couples’ families, even if it withholds legal
recognition from nonbiological parents in both different-sex and same-sex
couples.371 Instead, a
parentage regime that treats lesbian and gay parents as full participants opens
social paths to recognition to both women and men, in both different-sex and
same-sex couples, both inside and outside marriage.

A parentage
regime rooted in the gender-differentiated frameworks of marriage and biology
also makes outsiders of women who parent children to whom they are not
biologically connected. Courts and legislatures often invoke reproductive
biology to justify the differential treatment of nonbiological mothers and
fathers—recognizing fathers, but not mothers, on social grounds. But this
approach reflects and reiterates traditional understandings of motherhood as
women’s natural destiny, and it excludes women who break from conventional
roles by separating the biological aspects of reproduction from the social
aspects of parenting.372 An approach to parentage
driven by gender equality acknowledges that women and men are not similarly
situated with respect to reproductive biology, yet recognizes both women and
men who parent children to whom they are not biologically connected.

Such an approach
protects not only parents but also children.373 The determination
of legal parentage is generally driven by the parental interest, and is not a
determination based on the best interests of the child.374 Nonetheless,
children’s welfare is a foundational principle in family law and clearly animates
approaches to parentage.375 Of course, difficult
questions about children’s interests arise when the law allows individuals to
make agreements about parental status, as it increasingly does in the context
of ART. Nonetheless, vindicating equality commitments in the ways suggested
here—and specifically through recognition of parenthood’s social
dimensions—significantly promotes the interests of children. In fact,
courts that have made parentage determinations that conform to principles of
gender and sexual-orientation equality have recognized how their decisions
further “the state’s interest in the welfare of the child and the integrity of
the family.”376 Recognition of parents on social
grounds allows courts to protect, rather than sever, “strongly formed bonds between
children and adults with whom they have parental relationships.”377
Constitutional precedents on family recognition, including recent decisions on
marriage equality, also emphasize children’s interests in nonbiological
parent-child relationships.378

In crediting
parenthood’s social dimensions, this approach does not suggest that the law
jettison biological connection as a basis for parentage. The aim here is not to
articulate an ideal model of parental recognition but rather to reform the law
in ways that align with principles of equality. Moreover, this approach
respects existing expectations about parental connections.379 Given that
both genetic contribution and birth play powerful roles in common understandings
of parenthood, law may continue to reflect the salience of biological ties.
Indeed, longing for biological parenthood leads many to engage in ART in the
first place.380 Even those
who create nonbiological relationships often seek their own physical traits in
sperm and egg donors.381 The law need not deny the
salience of biological bonds to incorporate other indicia of parenthood. Further,
biological connections often lead individuals to form parent-child relationships.
In this sense, biological ties—including not only gestation but genetics—may
provoke commitments of care and support that align with the vindication of
social factors.

This approach
suggests a continued role for marriage as well.382 Individuals
commonly understand parental relationships to coincide with marital bonds, and
marriage has long captured social, and not simply biological, parent-child
relationships.383 Marriage historically
recognized social parent-child relationships in service of a
gender-hierarchical, heterosexual order, but today, marriage may channel social
parental ties in service of a more egalitarian society. Much of the shift
toward marriage equality was driven by the relationship between marriage and
parenting advanced by same-sex couples themselves. Now, same-sex couples assert
compelling demands to parental recognition linked to marriage.384 Still, even
as marriage persists as a pathway to parentage, law must ensure equality for
nonmarital parents and children.385 This
requires social paths to parental recognition for unmarried parents.

Significant
authority from family law and constitutional law supports the equality
principle articulated here. For example, lawmakers in states such as California
and Maine recently revised their parentage codes to ensure equality for lesbian
and gay parents and their children and to implement explicit and consistent
gender-neutral constructions.386 These reforms required
more than merely applying existing parentage rules on a facially neutral basis;
they required reorienting parentage rules in ways that reflect the realities of
same-sex family formation and that value contributions of women who assume
nontraditional parental roles.387 In these states, lawmakers
added paths to parentage that turned on social factors and opened those paths
to women and men, in different-sex and same-sex couples, in marital and
nonmarital families.388

Constitutional
precedents also support this approach to equality. The Court’s injunction
against gender stereotyping in United
States v. Virginia,389 as well as its protection
of same-sex couples’ marriage and parenting relationships in United States v. Windsor390 and Obergefell,391 require
treating women and gays and lesbians as equally valued participants.
Nonetheless, these precedents do not definitively establish the implications of
an equality principle in the parenting context. In fact, it is not clear that
courts would require the types of reforms envisioned here under constitutional
doctrine in its current form. Yet, as the trajectory toward marriage equality
illustrates, courts may work out the meaning of equality over the course of
many years and in dialogue with developments at the state level.

Accordingly,
the next Section explores state-based family law reform, suggesting how law
might concretely address parentage when guided by commitments to equality that
require greater recognition of parenthood’s social dimensions. These
reforms are meant to be illustrative and not exhaustive. The last Section then points toward
constitutional developments that may follow from family law reform. The
constitutional discussion draws on the case of marriage equality to consider
how courts might come to understand the requirements of equal protection and
due process so as to protect the social contributions of parents, including
women and same-sex couples.

B. Reorienting Parentage in
Family Law

Statutory
parentage regimes in most states remain rooted, to varying degrees, in distinct approaches to motherhood and
fatherhood. While law has increasingly allowed both men and women—with
and without biological connections—to satisfy traditional presumptions of
paternity, maternity remains limited to women with a biological connection to
the child. Accordingly, law facilitates families without biological fathers but
restricts families without biological mothers. Parentage law could move
away from separate regulations of maternityand paternity and instead work toward
general regulation of parentage.392 This would permit a fuller recognition
of the social bonds of parenthood, for both men and women, in both
different-sex and same-sex couples, both inside and outside marriage.393

Biological
connections—birth and genetics—would continue to demonstrate
parentage, but social factors would as well. Some obvious candidates include
intent (especially relevant before conception and birth),394 function
(relevant in post-birth and longer-term scenarios), and family formation (including,
but not limited to, marriage).395 Any approach to parental recognition
will credit the claims of some while rejecting the claims of others. When
biological and social factors point in different directions, the approach elaborated
here would recognize the social claim in some cases in which under current law
it would fail and would reject the biological claim in some cases in which
under current law it would prevail.

Some might object that the move toward social parenthood
pushes law away from administrable rules and toward individualized and
contested determinations. Yet there are relatively clear and predictable ways
of protecting social parenthood, ordinarily without delay or judicial
involvement. This Part suggests reforms that aim for relative certainty and
predictability. Nonetheless, to
the extent that crediting parenthood’s social dimensions leads law toward more
fine-grained, fact-specific assessments, this is not new.396Courts
have long looked at social attachments and functional criteria in determining
de facto parental status.397

1. The Marital Presumption

Presently all but one state maintain a marital presumption
that derives a spouse’s parentage from marriage to “the woman giving birth”398 or “the natural
mother.”399 While
most states continue to refer to the man married to the mother, a handful of
states have revised their statutory marital presumptions to recognize the person married to the mother.400 In
these states, the marital presumption expressly applies to men in different-sex
couples and women in same-sex couples. Yet, only one
state—Washington—has a marital presumption that would also apply to
women in different-sex couples and men in same-sex couples. Washington’s
presumption provides that “a
person is presumed to be the parent of a child if...[t]he person and the mother or father of the child are
married to each other...and the child is born during the
marriage....”401 Guided by
principles of equality, states could reform the marital presumption to apply in
a fully gender-neutral manner. Washington’s statutory language provides a
model—though one that could be altered in some ways.

Historically, the marital presumption could furnish parental
recognition in the absence of a biological relationship and deny recognition to
those with biological ties. Law exploited and elaborated this feature of the
marital presumption as it accommodated ART. In an age of marriage equality and
ART, the marital presumption is
not based on gendered, heterosexual, and biological assumptions about
reproduction and parenthood, but instead on social grounds for parental
recognition.402On this understanding, it is not clear why male same-sex couples
cannot benefit from the presumption. Nor is it clear why women without
biological ties cannot attain parentage by virtue of marriage to the biological
father, just as men can attain parentage by virtue of marriage to the
biological mother.

Animated by
equality principles that lead law to value the social bonds of parenthood, the
marital presumption could provide that the person
married to the biological parent at
the time of the child’s birth is the child’s presumed parent. While this type
of provision would be relatively straightforward, it may insufficiently protect
the rights of women who give birth.403 That is, by
automatically furnishing a presumption to the wife of a biological father, it
calls into question the parental rights of the birth mother. Accordingly,
lawmakers might account for the interests of birth mothers by implementing a
two-tiered system of marital presumptions: first, the person married to the
woman giving birth at the time of the child’s birth would be presumed the
child’s legal parent; second, the person married to the genetic parent at the
time of the child’s birth would be presumed to be the child’s legal parent, if
that person accepts the child into his or her home and openly holds the child
out as his or her child. This approach would respect the gestational bonds of
women, but at the same time account for the parental bonds of women who
separate motherhood from biological connection. And male same-sex couples who
have children together would enjoy a nonadoptive path to dual parentage through
marriage. Importantly, such an
approach would not necessarily render a nonbiological mother in a different-sex
couple or a nonbiological father in a same-sex couple a legal parent, but would
merely make that result possible by virtue of a system of rebuttable
presumptions.404 For
the vast majority of parents, these changes would be irrelevant.

Revisiting Doe, the Connecticut decision discussed
in Part III, illustrates the paradigmatic case in which this gender-neutral
application of the marital presumption would matter.The mother there had parented her child
for fourteen years before the dissolution of her marriage. While the surrogate’s
rights had long been terminated, the biological father—the mother’s
husband—pointed to Connecticut’s regulation of marital parentage to
preclude his wife’s legal status. If she were the biological
mother—whether gestational or genetic—she could have claimed the
child as a child of the marriage; her husband would have been able to claim
parental status even without a biological connection. But since she was a
nonbiological mother, the child was not a child of the marriage. A gender-neutral
marital presumption could resolve this problem and provide a way to recognize
the mother’s status on social, rather than biological, grounds.

A
gender-neutral marital presumption would promote not only sex but also sexual-orientation
equality. Notably, when Washington became the only state to alter its marital
presumption in this way,405 it did so as part of a
broader effort to protect the families formed by same-sex couples. The bill to
amend the parentage statutes followed from legal recognition of same-sex
relationships and sought to conform parentage law to such recognition.406 The bill was
sponsored by a legislator who had engaged in gestational surrogacy in California
to have children with his same-sex partner.407 As part of
the same bill, he had attempted to repeal the state’s ban on compensated
surrogacy and instead to facilitate gestational surrogacy.408 Despite
support from both LGBT and women’s rights organizations in the state, the
surrogacy provisions were dropped.409 Yet with the
revised marital presumption, women in different-sex couples and men in same-sex
couples may in some circumstances be able to engage in egg-donor gestational
surrogacy and turn to the marital presumption to claim parentage.

Ideally,
legislators would accept primary responsibility for reforming parentage law, as
they did in Washington. But lawmakers in many states have been slow to respond
to shifts in family formation made possible by ART—even when urged to do
so by judges.410
Consequently, courts are routinely asked to apply existing parentage principles
to new and unforeseen situations. In many states, courts can rely on existing
family law principles to apply the marital presumption in ways that promote
equality and recognize parents on social grounds.

Following the
UPA, parentage codes in many jurisdictions expressly provide that, where
possible, provisions governing the father-child relationship apply to the
mother-child relationship.411 Courts have appealed to
this gender-neutrality principle to recognize women in same-sex couples, in
both marital and nonmarital families, on purely social grounds. Going forward,
courts could apply this principle in more far-reaching ways, so as to recognize
women in different-sex couples and men in same-sex couples on social grounds.412

Consider S.N.V., a case from Colorado in which a
husband and wife had been raising a child from the husband’s extramarital
relationship.413 When, two
years after the child’s birth, the birth mother sought custody, the husband and
wife claimed to be the child’s legal parents to the birth mother’s exclusion.
Colorado’s statutory marital presumption provided that “[a] man is presumed to
be the natural father of a child if...[h]e and the child’s natural mother are...married to each other and the child is
born during the marriage.”414 Relying on the parentage
code’s gender-neutrality principle, the court found that even though “on its
face, [the provision] applies only to paternity determinations,” it “extended
to maternity determinations.”415 The biological father’s
wife, the court determined, could “bring an action to establish her legal maternity,
even though she [was] not the biological mother.”416 The court
recognized a social path to parentage by virtue of “[a] woman’s proof of
marriage to the child’s father.”417 This is not
to say that the nonbiological mother prevails over the birth mother, but rather
that she simply has standing to assert parentage. Within a legal regime that
limits parentage to two individuals, the decision authorizes a result that
would prioritize the social bonds of the biological father’s wife over the
claims of the birth mother.

S.N.V.'s application of the marital presumption
is an outlier. If its logic were accepted more widely, parentage could be
derived in the first instancefrom
the biological father—a transformative shift in the law of parenthood.
Critically, though, this shift would be consistent with equality commitments
that already have reshaped other aspects of family law, and it would eradicate
some of the asymmetries that continue to pervade parentage law.

2. Voluntary
Acknowledgments of Parentage

While the
marital presumption addresses children born inside marriage, states maintain
statutory frameworks to recognize the parents of nonmarital children. Every
state uses a procedure, commonly termed a Voluntary Acknowledgment of Paternity
(VAP), to identify a nonmarital child’s father.418 VAPs purport
to identify the child’s biological
father. The identification of a second legal parent alleviates some of the
burdens experienced by nonmarital children. But because same-sex couples
ordinarily include a nonbiological parent, the biological foundation of
VAPs does not repair—but instead exacerbates—burdens experienced by
the nonmarital children of same-sex couples. The equality principles guiding
reform would lead states to open VAPs to same-sex couples in ways that render
VAPs explicitly capable of capturing social, and not only biological, grounds
for parenthood.

As the revised UPA sets out the VAP mechanism, “The mother of a child and a man claiming to be the genetic father of the
child may sign an acknowledgment of paternity with intent to establish the
man’s paternity.”419 After sixty days, VAPs
have the force of an adjudication.420VAPs assume biological paternity
but do not formally require
paternity testing.421 Accordingly, they effectively
facilitate parental recognition on purely social grounds. In fact, courts in many states have
rejected subsequent challenges to VAPs based on the father’s lack of genetic
connection to the child.422

Yet VAPs emphasize biological paternity in ways that obscure
their nonbiological capacity. This means that VAPs capture nonbiological
parenthood only for different-sex couples who, unlike their same-sex counterparts, can pretend they are the child’s biological
parents. So long as the signatories are an unmarried man and woman, the VAP can
have the force of an adjudication of paternity regardless of biological facts.
An unmarried lesbian couple, in contrast, cannot sign a VAP. Accordingly, in
most states, the nonbiological mother cannot establish parentage upon the
child’s birth. Nonbiological fathers can deploy their heterosexual relationship
to achieve parentage, while nonbiological mothers are excluded.

A more egalitarian system would expressly allow VAPs to
recognize parents not only on biological but also on social grounds.423
Voluntary acknowledgments of paternity
could become voluntary acknowledgments of parentage
and apply to both biological and nonbiological parents, including both men and
women.424
Drafters of revisions to the UPA have proposed this type of reform. The January
2017 discussion draft included a VAP procedure in which “[t]he woman who gave
birth to a child and an individual claiming to be the alleged genetic father, intended parent, or presumed parent of
the child may sign an acknowledgment of parentage with intent to establish the
child’s parentage.”425

3. The Regulation of ART

The marital presumption and VAP procedure envisioned above
would accommodate some forms of ART through generally applicable regulations of
parental recognition. Same-sex couples who engaged in donor insemination, for
example, could sign a VAP to establish parentage for the nonbiological mother.
Still, legislatures have compelling reasons to regulate ART through specific
statutory provisions. In fact, states with the most extensive recognition of
parentage through ART have enacted elaborate regulations aimed solely at
assisted reproduction.

Lawmakers in
these states have used the concept of consent to build statutory
frameworks that open paths to
nonadoptive parentage based on social, and not simply biological, grounds. The
concept of consent already structures approaches to at least some forms of ART
in practically every state. A more comprehensive and evenhanded use of consent
in the regulation of ART can promote equality, based on gender, sexual
orientation, and marital status.426 Approaches to both donor
insemination and gestational surrogacy illustrate this point.

In every state,
the man married to a woman who conceives with donor sperm is treated as the
legal father. Under relevant statutes, his consent to assisted reproduction
authorizes his recognition.427 In most states, though,
his consent would be legally unavailing if he were not married to the child’s
mother.428 While this
presents obstacles to different-sex couples, its greatest impact has been on
same-sex couples, who rely more heavily on donor insemination to have children
and historically were excluded from marriage. In a regime animated by equality
commitments, an unmarried partner, like a mother’s spouse, would derive
parentage from intention—operationalized through written consent to the
mother’s use of ART with the intent to be a parent. For example, as Maine’s
newly enacted parentage code provides, “a person who consents to assisted reproduction
by a woman...with the intent to be the parent of a
resulting child is a parent of the resulting child.”429 Not only
would this remedy some of the inequalities that the biological framework
governing nonmarital parenthood imposes specifically on same-sex couples, it
would also help unmarried different-sex couples who engage in ART.

Even as states open various forms of assisted reproduction on
equal terms, they might still devise specific
regulations for particular practices. Because surrogacy raises concerns with
the exploitation of low-income women and the commodification of children and
women’s reproductive labor, lawmakers may continue to treat surrogacy with
special caution. Those states that have authorized gestational surrogacy for
both different-sex and same-sex couples have done so through specific
regulatory frameworks that seek
to protect intended parents, surrogates, and children. Regulating in ways that
attend to the interests of surrogates does not mean that surrogates possess parental
rights. Instead, these states cut off claims to parental recognition and
recognize the intended parents at the child’s birth.

Maine’s recent reform exemplifies this pattern. The state’s
parentage code separately regulates gestational surrogacy by providing that, if
certain conditions relating to protection of the surrogate’s interests are met,430
intended parents “are by
operation of law the...parents of the resulting child immediately
upon the birth of the child.”431 This regime allows both
biological and nonbiological intended parents, in both different-sex and
same-sex couples, both inside and outside of marriage, to attain parentage upon
the child’s birth.432 In doing so, it recognizes
the importance of social contributions for those engaging in ART, and it
applies mechanisms that capture those social contributions in ways that promote
equality along lines of gender, sexuality, and marital status.

C. Reorienting
Constitutional Law on Parenthood

Attention to
family law’s treatment of parent-child relationships makes visible emergent
constitutional questions. These questions may first arise in state courts under
state law but will likely confront federal courts eventually. Constitutional
precedents on the rights of women and gays and lesbians, including with respect
to family and parenting relationships, demonstrate a strong commitment to
including as full participants those who have been traditionally excluded.
Nonetheless, courts have not determined what these precedents mean for purposes
of the specific relationships addressed in this Article. This Section explores
how, in response to significant state-level reform, shifting patterns of family
formation, and evolving norms of gender and sexuality, federal constitutional
law may develop in ways that expand the space of parental recognition.

1. Equal Protection and
Parental Recognition

Today, parental
recognition implicates questions of equality—including on grounds of
gender, sexuality, and marital status. But equal protection doctrine, as
currently constituted, may struggle to adequately address issues arising in
parenthood. The following discussion considers doctrinal features that present
obstacles to effective constitutional oversight in the law of parental
recognition, looks to marriage equality as a site in which these features did
not prevent meaningful constitutional review, and then considers how law might
develop on questions of parental recognition.

a. Contested Sites of
Equality Law

Some features
of current equal protection doctrine may constrain developments that promote
gender and sexual-orientation equality in the law of parental recognition. As
Part I showed, the Court has permitted gender differentiation in the legal
regulation of parenthood, justifying such differentiation by resort to reproductive
biology. Reasoning first articulated at the dawn of modern sex-equality
doctrine continues to supply authority for the differential treatment of
mothers and fathers. The failure to see gender differentiation in parenthood as
a sex-equality problem led law to devalue the social contributions of unmarried
biological fathers. In the contemporary regulation of parentage, this failure
also leads law to discount the social contributions of women who separate
parenthood from biological ties.

Other features
of equal protection doctrine also pose obstacles. The Court has focused on
questions of classification and discriminatory purpose in ways that mask
inequality. For example, the Court has resisted an approach to sex equality
that understands “legislative classification[s] concerning pregnancy [as]...sex-based classification[s].”433 And it has
required a particularly demanding showing of “discriminatory purpose”434 in
challenges to laws “neutral on [their] face”435—that
state actors took “a particular course of action at least in part ‘because of,’
not merely ‘in spite of,’ its adverse effects upon an identifiable group.”436

In the law of
parental recognition, courts might fail to see how a legal regime that
privileges biological over social connections discriminates against lesbian and
gay parents. Courts might conclude that so long as the government treats
nonbiological unmarried parents the same (closing paths to their parental
recognition), it acts in accordance with principles of equal protection. Compounding
the problem, courts might view access to marriage as curing discrimination
against same-sex couples and thus may give the government wide latitude in drawing distinctions that harm
same-sex couples’ nonmarital families.437

Certainly,
these doctrinal features complicate effective constitutional oversight in the
law of parental recognition. Yet, critically, these features did not prove
dispositive in judicial approaches to marriage equality. Instead, courts
considered social meaning in ways that led them to repudiate forms of exclusion
that had long been taken for granted.438 The Windsor Court did not appear to view the
question of whether DOMA classified on the basis of sexual orientation as
central, and thus neither addressed nor resolved it.439 Instead, the Court focused on DOMA’s
purpose and effect. “The avowed purpose and practical effect of the law,” the
Court explained, “are to impose a disadvantage, a separate status, and so a
stigma upon all who enter into same-sex marriages made lawful by the unquestioned
authority of the States.”440 The harm the Court sought
to remedy was not merely that the law differentiated but that it excluded and
disrespected same-sex couples’ family relationships—“tell[ing] [same-sex]
couples, and all the world, that their...marriages are unworthy of federal
recognition.”441 Without
legal recognition, “same-sex...couples ha[d] their lives burdened...in visible and public ways.”442

In striking
down state marriage bans in Obergefell,
the Court concluded that “the marriage laws...are in essence unequal.”443 While the
Court reasoned primarily in terms of due process, its equality analysis focused
not on questions of discriminatory purpose but instead on the impact of
marriage bans on same-sex couples. The Court condemned the laws because they
“serve[d] to disrespect and subordinate” gays and lesbians.444 “Especially
against a long history of disapproval of their relationships,” the exclusion of
same-sex couples “work[ed] a grave and continuing harm.”445 The Court
required the government to make insiders of same-sex couples, declaring that
“[i]t demeans gays and lesbians for the State to lock them out of a central
institution of the Nation’s society.”446

b. Sexual-Orientation
Equality and Parental Recognition

The approach to
equality that guided resolution of the marriage question could shape approaches
to questions of parental recognition. Disputes emerging in state courts under
state constitutional law are illustrative. In ordering the state to apply its
marital presumption to lesbian couples, the Iowa Supreme Court relied on its
earlier decision holding the state’s marriage law unconstitutional.447 Even though
the law referred to “mothers” and “fathers”—just as the marriage law
referred to women and men—the court rejected the argument that it
classified only on the basis of sex, and not sexual orientation. Instead, the
court concluded that “the refusal to list the nonbirthing lesbian spouse on the
child’s birth certificate ‘differentiates implicitly on the basis of sexual
orientation.’”448 As in its earlier marriage
decision, the court addressed the issue as one of discrimination against gays
and lesbians. For the court, the effect of the law on same-sex couples appeared
more important than a formal approach to questions of classification.

The concern
with social meaning in marriage equality jurisprudence extends to parent-child
relationships. In fact, Windsor and Obergefell each focused on the impact on
children. The exclusion of same-sex couples, the Windsor Court explained, not only “demeans the couple,” but also
“humiliates tens of thousands of children now being raised by same-sex
couples.”449 The Court
emphasized the difficulty that children would experience in “understand[ing]
the integrity and closeness of their own family and its concord with other families
in their community and in their daily lives.”450 Again, in Obergefell, the Court declared that for
those “gays and lesbians [who]...create loving, supportive families,”
the legal exclusion “harm[s] and humiliate[s] [their] children.”451 The Court
observed that “[w]ithout the recognition, stability, and predictability
marriage offers, children [of same-sex couples] suffer the stigma of knowing
their families are somehow lesser.”452

In this sense,
marriage equality precedents push courts to reevaluate whether existing
parentage regimes furnish equality to gays and lesbians and their children. As
New York’s highest court recently acknowledged in repudiating a
twenty-five-year precedent that excluded unmarried nonbiological parents from
parentage, the “foundational premise of heterosexual parenting and
nonrecognition of same-sex couples is unsustainable, particularly in light of
the enactment of same-sex marriage...and the...holding in Obergefell v. Hodges, which noted that the right to marry provides
benefits not only for same-sex couples, but also the children being raised by
those couples.”453Obergefell may reshape legal regulation even in traditionally
resistant jurisdictions. Indeed, a Louisiana appellate court recently
reevaluated the state’s treatment of unmarried nonbiological parents based on Obergefell, which the court read to
protect not only marriage but also “the decision to start a family.”454

Guided by
marriage equality precedents, courts would focus on the meaning and impact of
the law, rather than simply on whether the law classifies based on sexual
orientation.455 Unlike
different-sex family formation, same-sex family formation
ordinarily—almost necessarily—features nonbiological parental ties.
Accordingly, treating same-sex couples like different-sex couples is an empty
promise so long as biological connection remains parenthood’s animating logic.

The harms
documented in Part III would become relevant to an examination of the
constitutionality of the state’s regulation of parentage. Nonrecognition and
resort to adoption are concrete harms inflicted on same-sex parents and their
children. The regime that imposes these burdens treats same-sex couples’
families as less deserving of respect and recognition. As the New York court reasoned,
an approach to parenthood that does not turn on biological connection is
necessary to “ensure[] equality for same-sex parents and provide[] the
opportunity for their children to have the love and support of two committed
parents.”456
Social paths to parental recognition, courts might conclude, are necessary to
treat gays and lesbians as fully belonging in the institution of parenthood.

c. Sex Equality and
Parental Recognition

While the
constitutional treatment of gays and lesbians has evolved dramatically in
recent years, the law of sex equality has received less attention. Yet issues
of gender differentiation in parenthood continue to arise in both family law
and immigration law. While cases in both settings illustrate how law has
insufficiently credited the social contributions of biological fathers, the contemporary
treatment of ART shows that law also insufficiently credits the social
contributions of nonbiological mothers.

Constitutional
precedents have permitted this system by citing biological differences between
women and men to authorize the differential treatment of mothers and fathers.
In rejecting the claims of unmarried fathers in the 1970s and 1980s,457 the Court
justified the state’s treatment in terms of reproductive differences—even
in the face of facts that evidenced actual father-child relationships. This
dynamic arose even more powerfully in immigration cases. In Nguyen, the Court upheld regulations
making it more difficult for fathers to confer citizenship on nonmarital
children. The Court connected a woman’s biological role in reproduction to the
“opportunity for mother and child to develop a real, meaningful relationship.”458 Yet it
dismissed the claim of the father, who had in fact developed a “real,
meaningful relationship,” because “[t]he same opportunity does not result from
the event of birth, as a matter of biological inevitability.”459

Other
sex-equality precedents, however, take a different approach to sex-based
classifications that implicate physiological differences between women and men.
In holding the exclusion of women from the Virginia Military Institute (VMI)
unconstitutional, the Court in United
States v. Virginia recognized the persistence of “inherent differences”
between women and men, but explained that such differences cannot form the
basis “for denigration of the members of either sex or for artificial
constraints on an individual’s opportunity.”460 Sex-based
classifications, the Court declared, “may not be used, as they once were, to
create or perpetuate the legal, social, and economic inferiority of women.”461 The Court
rested its decision on an equality principle premised on inclusion and
participation, impugning laws that deny to women “full citizenship
stature—equal opportunity to aspire, achieve, participate in and contribute
to society based on their individual talents and capacities.”462

Virginia and Nguyen share some common themes. They
treat sex-based classifications as presumptively unconstitutional and subject
such classifications to heightened scrutiny regardless of whether they
implicate physiological differences between women and men.463 They
recognize that in some circumstances, sex-based classifications can be
justified in light of physiological differences.464 But they
diverge in their approach to those circumstances. The tension between Virginia and Nguyen manifests itself most clearly in the law of parental
recognition. If courts were to reason about parenthood from Virginia, rather than Nguyen, they would likely exhibit less
tolerance for gender differentiation.

This term, the
Court has before it another case challenging the differential treatment of
unmarried mothers and fathers in the immigration context.465 The law
imposed longer residency requirements on unmarried fathers who wished to
transmit citizenship to their children. In 2011, an equally divided Court affirmed
per curiam a Ninth Circuit decision upholding these regulations.466 The Ninth
Circuit had relied heavily on Nguyen,
which involved a different set of sex-based regulations.467

In rejecting
the regulations now before the Court, the Second Circuit refused to extend Nguyen. Instead, Virginia guided the court’s analysis.468 The court
found that, despite differences between women and men with respect to
reproduction, the sex-differentiated residence requirements were “not substantially
related to the goal of ensuring a sufficient connection between citizen
children and the United States.”469 The Second
Circuit explained that the sex-based distinction in the immigration regulations
“arguably reflect[s] gender-based generalizations concerning who would care for
and be associated with a child born out of wedlock.”470 By imposing
more onerous requirements on biological fathers, the regulations not only
enforced views that inevitably imposed child rearing on women but also failed
to adequately credit the father-child relationship at stake. Indeed, the father
had legitimated the child by marrying the mother when the child was eight.471

Decisions on
questions of parenthood in immigration may shape decisions in family law, just
as earlier decisions relating to family law underwrote subsequent decisions
regarding citizenship status. If the Court affirms the Second Circuit’s
decision regarding parenthood in immigration law, it may also begin to question
the wisdom of relying on biological justifications to distinguish between
motherhood and fatherhood for purposes of family law.472 State court
reasoning that relies on Nguyen to
justify the nonrecognition of nonbiological mothers for purposes of parentage
law could become suspect.

Consider Amy G. v. M.W.,473 a California
case with facts reminiscent of S.N.V.,474 the Colorado
marital presumption case discussed earlier. The biological father and his wife
had been raising the child, who at the time of the decision was three, since he
was one month old.475 The birth mother had surrendered
the one-month-old child to the father and had signed an agreement consenting to
adoption by the father’s wife, but months later filed a petition to establish a
parental relationship.476 Unlike in Colorado, the
California court held that the father’s wife did not have standing to establish
parentage pursuant to the marital presumption.477 Rejecting
her equal protection argument, the court explicitly resorted to the Court’s
reasoning in Nguyen:

While a
biological father’s genetic contribution to his child may arise from nothing
more than a fleeting encounter, the biological mother carries the child for the
nine-month gestational period. Because of this inherent difference between men
and women with respect to reproduction, the wife of a man who fathered a child
with another woman is not similarly situated to a man whose wife was impregnated
by another man.478

Of course, men and women are not similarly situated with respect to
reproductive biology. But, guided by Nguyen,
the court translated biological differences between women and men into social
and legal differences between mothers and fathers. The point here is not
to suggest that the birth mother should not have prevailed. Rather, it is that
the court relied on biological differences to justify a system that denies
standing to assert parentage to a woman who had formed a parent-child relationship
on social grounds.

In contrast, an
approach guided by Virginia would
have asked whether, notwithstanding biological differences between women and
men, the gender-differentiated parentage law is substantially related to an
important governmental objective.479 Parentage
laws, as many courts have recognized, are driven by the state’s interests in
identifying those individuals responsible for the support of the child,
protecting the integrity of the family, and safeguarding the child’s interest
in continuity of care.480 The differentiation
between men and women who step forward to parent children—that is, the
recognition of nonbiological fathers but not mothers—may not advance
those interests but instead may undermine them.481 A
sex-neutral alternative could promote the government’s interests as
effectively.482 Again, such
an approach would not mean that the biological father’s wife in a case like Amy G. would prevail but that she merely
would have standing to assert parentage.

Here, again,
the principles animating the Court’s recent marriage decisions provide
guidance. If courts were to reason in the tradition of Windsor and Obergefell,
they might focus the constitutional inquiry not simply on means-ends analysis
but also on the law’s social meaning.483 A court
might ask whether the parentage law devalues women’s social bonds in the
absence of biological ties and thereby denigrates important relationships of
care and support formed between parents and children. Again, the harms
documented in Part III would be relevant to the constitutional inquiry. Courts
would view with skepticism a legal regime that forces nonbiological mothers,
but not nonbiological fathers, to adopt their children. A court might ask
whether the parentage law reflects views that tie women to child rearing as a
matter of biology. As Part III showed, the nonrecognition of nonbiological
mothers—as seen specifically in approaches to surrogacy—perpetuates
the notion that the social role of motherhood flows inevitably from the
biological fact of maternity. Guided by an equality-inflected approach, the Amy G. court, for instance, might have
repudiated the trial court’s reasoning, which suggested that the nonbiological
mother was “[no] different from a live-in nanny”484—presumably
also a woman who cares for a child not biologically her own.

Rather than
insulate gender differentiation in parenthood from scrutiny based on biological
differences between women and men, courts might provide constitutional
oversight in ways that detect gender stereotypes and require sex-neutral
alternatives. This may furnish greater recognition of unmarried biological
fathers—like those in Parham
and Nguyen—who commit to the
social work of parenting. It may also dislodge motherhood from biological ties
in ways that recognize women—like those in Doe and S.N.V.—who
parent children to whom they have neither a gestational nor genetic connection.
Both of these developments would value parenthood’s social dimensions in ways
that promote children’s interests in continuing and stable relationships.

2. Equality and Parental
Liberty

Given that
equality concerns have structured the protection of liberty in the realm of
family relationships, the law of parental recognition might also evolve as a
matter of due process, which this Section only briefly considers.485 As Part I
showed, the Court’s efforts in the 1970s to protect the parental rights of unmarried
fathers grew out of concerns with the inequalities experienced by nonmarital
parents and children. At that time, the Court announced that unmarried fathers
have a due process interest in parenthood that springs from their biological
connection to the child.486 Even though the Court
required social performance from biological fathers, biological connection
continued to ground the claim to constitutional protection.487 Since then,
challenges to the biological limitation on constitutional protection have
largely failed.488

But with new
appreciation for the equal status of gay and lesbian parents, courts might
eventually recognize the social bonds of parenthood as a matter of due process.489 Again,
marriage equality jurisprudence provides support for this approach, suggesting
how emergent understandings of equality can reshape understandings of liberty.490 In Obergefell, the Court observed that the
exclusion of same-sex couples from marriage “may long have seemed natural and
just....”491 But, it
reasoned, new understandings of the equal status of gays and lesbians made
clear that the exclusion impermissibly “impose[s] stigma and injury....”492 Echoing the
emphasis in Windsor’s equal
protection analysis, the Obergefell
Court’s due process analysis focused on how the “exclusion [from marriage] has
the effect of teaching that gays and lesbians are unequal in important
respects.”493 Explaining
how the lack of recognition “consigned [same-sex couples] to an instability
many opposite-sex couples would deem intolerable in their own lives,”494 the Court,
as a matter of due process, required the government to treat gays and lesbians
as insiders.

If Obergefell were to guide approaches to
parental recognition, courts might extend due process protection to social
bonds in the absence of biological connection. Indeed, this development would
build on and elaborate commitments that animated the Court’s earlier
precedents. Decisions on unmarried fathers emphasized men’s social
contributions, even as constitutional protection was rooted in the biological
tie. And when the Court articulated the due process interest in parental
recognition, it did so to promote equality for nonmarital parents and children.
Since then, it has become clear that the biological lines drawn to vindicate
unmarried parents and children have resulted in the exclusion of same-sex
couples’ families. Now, due process protection for the social dimensions of
parenthood would remedy harms imposed on the nonmarital families formed by gays
and lesbians.

Further, due
process protections for social bonds of parenthood would more broadly protect
nonbiological mothers.495 The woman who commits to
the difficult task of parenting—even without biological
connections—would have the importance of her parental work and the
significance of her relationship with the child recognized as a matter of
liberty. Due process protection of this kind would also affirm values that the
Court has articulated in protecting women’s liberty interests in reproductive
decision making. The Court has explained that women’s ability to separate
pregnancy from motherhood and thereby break from traditional norms that tie
them naturally to child rearing is critical to women’s equal standing.496 In the
regulation of ART, this insight has implications for intended mothers and
surrogates, both of whom separate the biological fact of maternity from the
social role of motherhood. Law would not only protect the intended mother’s
social contributions, but also the surrogate’s decision to carry and give birth
to a child she does not wish to parent. Women who occupy unconventional gender
roles—both those who seek to parent and those who do not—would have
their decisions respected.

At this point,
it is unclear what doctrinal form constitutional oversight of parental
recognition might take. Both equal protection and due process might contribute
to developments in the law of parental recognition. In either area, though, meaningful
constitutional interventions are likely to arise only after a number of states
have reckoned with the burdens placed on women and same-sex couples whose
parent-child relationships the government fails to respect and recognize.

Conclusion

This Article
uncovers the harms countenanced by a legal regime rooted in marital and
biological frameworks of parental recognition. Because those frameworks were
designed around the gender-differentiated, heterosexual family, gender- and
sexuality-based asymmetries remain embedded in the law of parental recognition.
Even as courts and legislatures seek to conform parentage law with more recent
egalitarian commitments, their progress remains partial.

To repair the
problems that exist in current approaches to parental recognition, this Article
proposes reforms that continue to use marital and biological ties as markers of
parentage. Perhaps this reform project holds more transformative potential than
one might assume. The shifts in legal parenthood envisioned here may ultimately
destabilize both marital and biological logics by transcending the two-parent
limit on which both are premised.497 Indeed, a
subsequent phase of liberalization focused on recognition of multiple parents
may have just begun.498

In Michael H., the seminal case on the
conflict between unmarried biological fathers and married nonbiological
fathers, Justice Scalia declared that “California law, like nature itself, makes no provision for dual fatherhood.”499 Yet his
plurality opinion protected the nonbiological father—the mother’s husband
who claimed parenthood by virtue of the marital presumption—by rejecting
the natural father’s constitutional
claim. Marriage, in that case, did not simply vindicate social understandings
of parenthood; it also cabined reproduction and parenting within the two-parent
unit.500 The child
emerged with only one legal mother and father.

Since Michael H., California law has changed.
The state allows biological fathers to challenge the parentage of husbands;501 recognizes
unmarried nonbiological fathers,502 even over
their biological counterparts;503 and protects the parental
rights of same-sex couples.504 The state regulates ART,
for both married and unmarried couples and different-sex and same-sex couples,
in ways that furnish a range of paths to nonbiological parentage.505

Eventually,
when confronted with the many types of parental configurations that California
law could produce,506 California legislators
decided to allow recognition of more than two legal parents.507 Without
marriage, biology, gender, and sexual orientation as constraints on parenthood,
the two-parent rule seemed neither doctrinally sound nor normatively desirable.
Now, marital and biological bonds need not define nor limit parentage. Legal
parental ties can spill out of both the biological and marital units, making
each less meaningful to parentage.508

Ironically,
pushing beyond the two-parent limit might in some ways vindicate biological
ties—but in ways that reflect the changes wrought by ART.509 Recognition
of more than two parents may accommodate situations in which parents seek to
have gamete donors or surrogates maintain a relationship to the child, even if
not as a primary parent.510 Recognition of multiple
parents may also address objections to a less biologically oriented parentage
regime.511 If the
marital presumption were thoroughly gender-neutral, concerns about the rights
of birth mothers could be addressed by recognizing a nonbiological parent’s
interest in addition to, rather than in place of, the birth mother’s interest.
In fact, recognition of multiple parents might address potential constitutional
objections to a system that would otherwise allow the birth mother’s parental
rights to be rebutted.512 In the end, law might
adapt to many kinds of families forming today, recognizing the continued
attraction of biological parenthood while accommodating the growing number of
nonbiological bonds that are possible.

Of course, this
approach is not without costs. In facilitating additional claims, law might
change the very meaning of parenthood—divesting the power to exclude that
has historically been central to parental status.513 Moreover, it
is not clear when exactly recognition of multiple parents serves, and when it
undermines, children’s interests. Further, as we have already seen, efforts at
liberalization may fail to eradicate inequalities. Those with nonbiological
bonds—including same-sex couples and women engaging in egg-donor gestational
surrogacy—may have valid objections to a system of parentage that exposes
their families to biological claims, even if the claimants seek to supplement
rather than supplant the nonbiological parents. Within this regime,
inequalities based on gender and sexuality may persist. These concerns do not
counsel in favor of abandoning current efforts to reform parentage. Rather,
they suggest the importance of learning from the past—moving forward with
an appreciation for how inequalities may endure even as legal regimes are
transformed.514

Social contributions capture parental performance and may include forming a family, committing to the parent-child relationship, and engaging in the work of parenting. These contributions can exist in the presence or absence of biological connections. For purposes of this Article, biological connections include genetic contribution, as well as gestation and birth. Law often labels women as biological mothers based on gestation and birth, genetics, or both. It is important to recognize that gestation includes a functional dimension that may blur distinctions between biological and social contributions.

3

Developments provoked by ART fit within the more widespread separation of “sexuality from procreation,” which William Eskridge relates to “the decline of the natural law understanding of romantic relationships and its substantial displacement in public discourse by a utilitarian understanding.” William N. Eskridge, Jr., Family Law Pluralism: The Guided-Choice Regime of Menus, Default Rules, and Override Rules, 100 Geo. L.J. 1881, 1898 (2012) (emphasis omitted).

4

Ordinarily, only legal parents have standing to seek custody. Nonetheless, to varying degrees across jurisdictions, nonparents may seek custody in exceptional circumstances.

Scholars have examined distinct aspects of ART, including donor insemination and surrogacy, but have rarely attended to the interlocking regulation of various forms of ART, particularly along lines of parental recognition. For an important account of families with “donor-conceived children,” see Naomi Cahn, The New Kinship: Constructing Donor-Conceived Families (2013). For the leading treatment of changes in approaches to surrogacy, primarily in the context of heterosexual family formation, see Elizabeth S. Scott, Surrogacy and the Politics of Commodification, 72 Law & Contemp. Probs. 109 (2009).

See Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185 (2016) (situating recognition for lesbian and gay parents within shifts toward both marriage equality and intentional and functional understandings of parentage across all families).

17

See id.

18

While the precise relationships between gender and sexuality this Article uncovers have not been identified in existing scholarship, important work in family law attends to questions of gender and sexuality in the law of parental recognition and ART. See, e.g., Susan Frelich Appleton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 B.U. L. Rev. 227 (2006); Marla J. Hollandsworth, Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom, 3 Am. U. J. Gender & L. 183 (1995); Joslin, supra note 1; Nancy D. Polikoff, A Mother Should Not Have To Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J. C.R. & C.L. 201 (2009).

19

For the leading account of the equal treatment position, see Garrison, supra note 1. Garrison’s interpretive approach would apply “the law governing sexual conception and the implicit assumptions about parentage and family on which that law is based” to ART. Id. at 842. This approach, she argues, “treats all would-be parents equally, without regard to their choice of a method for becoming a parent. It does not depend on any particular vision of family life or parental prerogatives, except insofar as that vision has been accepted elsewhere within family law and policy.” Id. at 920.

20

Moreover, this Article does not make an affirmative case for ART over other forms of family formation. Nonetheless, in seeking to reform family law so that parental recognition emerging out of existing practices of ART aligns with equality principles, this Article identifies a distinctive relationship between ART—specifically, the creation of nonbiological parent-child bonds—and the equal standing of women and of same-sex couples. While the emphasis on nonbiological bonds finds common ground with arguments for greater access to adoption, it is important to note that some scholars view liberal ART policies as undermining adoption. See Elizabeth Bartholet, Intergenerational Justice for Children: Restructuring Adoption, Reproduction, and Child Welfare Policy, 8 Law & Ethics Hum. Rts. 103, 111 (2014) (arguing that “reproduction policy worldwide encourages privileged people to create new children rather than consider adopting existing unparented children”).

See infra Section IV.C. In fact, the path toward same-sex marriage suggests that developments at the state level ultimately may shape constitutional understandings of the family at the federal level. See William N. Eskridge, Jr., Backlash Politics: How Constitutional Litigation Has Advanced Marriage Equality in the United States, 93 B.U. L. Rev. 275 (2013); Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage, 102 Calif. L. Rev. 87 (2014).

See In re Findlay, 170 N.E. 471, 473 (N.Y. 1930) (“At times the cases seemed to say that any possibility of access, no matter how violently improbable, would leave the presumption active as against neutralizing proof.”).

29

Goodright v. Moss (1777) 98 Eng. Rep. 1257, 1257; 2 Cowp. 591, 592.

30

Phillips v. Allen, 84 Mass. (2 Allen) 453, 454 (1861).

31

C.C. v. A.B., 550 N.E.2d 365, 371 (Mass. 1990).

32

SeeMichael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America 201-02 (1985).

33

1 Blackstone, supra note 25, at *458; 2 James Kent, Commentaries on American Law *212; see also Kent v. Barker, 68 Mass. (2 Gray) 535, 536 (1854) (“It is well settled . . . that at common law the words ‘child’ and ‘children’ mean only legitimate child and children.”).

34

Grossberg, supra note 32, at 197.

35

SeeR.H. Helmholz, 1 The Oxford History of the Laws of England 561 (2004); Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development, and Present Status, Part I, 16 Stan. L. Rev. 257, 283-84, 312 (1964). In England, this support duty originally arose under canon law, which imposed a natural-law duty on parents to support their children—a duty originally enforced in ecclesiastical courts. SeeHelmholz, supra, at 560-61. Given difficulties proving paternity, determinations often flowed from “proof ‘by presumptions and conjectures.’” Id. at 560. On evidentiary techniques in early paternity trials in America, see generally Kristin A. Olbertson, “She Stedfastly Accused Him in the Time of Her Travail”: Women’s Words and Paternity Suits in 18th-Century Massachusetts, 19 Cardozo J.L. & Gender 41 (2012).

36

Grossberg, supra note 32, at 198.

37

See Hendrik Hartog, Man & Wife in America: A History 90 (2000) (“[A] father gained ‘the unquestioned right to [children’s] custody, control and obedience.’ Meanwhile, the mother, as nothing but a wife, was left without any rights at all.” (quoting Graham v. Bennet, 2 Cal. 503, 506-07 (1852))); see alsoGrossberg, supra note 32, at 196 (explaining how the law of legitimacy “had been constructed to protect family lineage and resources, and to promote matrimony”).

38

SeeNancy F. Cott, Public Vows: A History of Marriage and the Nation 11-12 (2000).

39

Grossberg, supra note 32, at 235; see also State v. Paine, 23 Tenn. (4 Hum.) 523, 536 (1843) (“The wife, by the common law, has no right to the children against the husband.”).

40

Grossberg, supra note 32, at 235.

41

The estate included the wife’s earnings and property (in which the husband gained a devisable interest if the marriage produced children). See Cott, supra note 38, at 12; George L. Haskins, Curtesy in the United States, 100 U. Pa. L. Rev. 196, 196-97 (1951). The gradual adoption of Married Women’s Property Acts in the nineteenth century altered this assumption. See Fletcher W. Battershall, The Law of Domestic Relations in the State of New York 366-67 (1910).

42

Cooley v. Dewey, 21 Mass. (4 Pick.) 93, 98 (1826). The child could be taken from the mother and placed for adoption. See Stephanie Coontz, Marriage, a History: From Obedience to Intimacy or How Love Conquered Marriage 257 (2005). Adoption itself constituted a nineteenth-century revolution in parenthood. Yet, into the twentieth century, courts prioritized “blood relations” over “adoptive ones” and thus maintained adoption “as a custody device more than a total transfer of family membership.” SeeGrossberg, supra note 32, at 278.

43

Grossberg, supra note 32, at 197-98.

44

See id. at 201. American law also departed from strict English common law rules—and adopted rules with civil-law and ecclesiastical origins—in ways that expanded the space of legitimacy. Examples include recognition of common law marriage, legitimation by subsequent marriage, and preservation of legitimacy in cases of annulment. See id. at 201-04.

45

See id. at 207.

46

See id. at 207-12.

47

Id. at 209.

48

See id. at 215-18.

49

Seeid. at 215.

50

Seeid. at 216.

51

See, e.g., Ala. Code § 27-11 (1940).

52

Grossberg, supra note 32, at 228-33.

53

Id. at 221.

54

See In re Stanley, 256 N.E.2d 814, 815 (Ill. 1970). As the government explained in Stanley, “Illinois requires the petitioner and others similarly situated to subject themselves to a legal proceeding . . . . [that] approximates an adoption or guardianship proceeding instituted by a person bearing no blood relationship to the child and in which the best interest showing is required.” Brief for Respondent at 31, Stanley v. Illinois, 405 U.S. 645 (1972) (No. 70-5014), 1971 WL 133736, at *31.

Harry Krause, the leading figure in favor of national legislative efforts, proposed a uniform act in a 1966 publication. See Krause, supra note 55, at 832-41.

62

Unif. Parentage Act § 2 (Unif. Law Comm’n 1973).

63

Id. § 4.

64

Id. § 4(a)(1)-(3).

65

Id. § 4(a)(4)-(5).

66

Id. §§ 4(b), 12.

67

See Leslie Joan Harris, The Basis for Legal Parentage and the Clash Between Custody and Child Support, 42 Ind. L. Rev. 611, 624-26 (2009). Some states require strong showings of parental conduct when biological fathers challenge the child’s placement for adoption by the mother. See, e.g., In re Adoption of Anderson, 624 S.E.2d 626, 626 (N.C. 2006) (holding that because the biological father “merely offered support but did not provide the actual financial support mandated under [state law] . . . his consent to the adoption is not required”).

68

See Dolgin, supra note 1, at 110 (distinguishing “cases in which unwed biological fathers have been held responsible for supporting their biological offspring despite the absence of any social relationship between the father and his biological child”).

69

Unif. Parentage Act § 12 cmt. (Unif. Law Comm’n 1973).

70

491 U.S. 110 (1989).

71

Id. at 118 (emphasis added).

72

Id. at 119 (“California declares it to be . . . irrelevant for paternity purposes whether a child conceived during, and born into, an existing marriage was begotten by someone other than the husband and had a prior relationship with him.”).

73

Earlier decisions had also protected social bonds within marriage, as rejection of unmarried fathers’ claims cleared the way for adoption by stepfathers. See Lehr v. Robertson, 463 U.S. 248 (1983); Quilloin v. Walcott, 434 U.S. 246 (1978).

Id. § 631 cmt. Earlier, the Court had held that indigent defendants in paternity actions were constitutionally entitled to blood tests at the expense of the government. See Little v. Streater, 452 U.S. 1 (1981).

See In re C.K.G., 173 S.W.3d 714, 723 (Tenn. 2005) (observing that “the parentage statutes generally fail to contemplate dispute over maternity” and that “the statute providing for an order of parentage is concerned solely with the establishment of paternity”); In re M.M.M., 428 S.W.3d 389; cf. Unif. Parentage Act § 4(b) (providing that a presumption of paternity may be rebutted).

94

See, e.g., In re Baby, 447 S.W.3d 807, 829-30 (Tenn. 2014) (discussing how a mother’s parental rights can only be terminated based on abuse and neglect, consent to adoption, or relinquishment); see also Unif. Parentage Act § 25 (addressing the procedure for termination of parental rights if a mother relinquishes her child).

95

See Serena Mayeri, Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality, 125 Yale L.J. 2292, 2372 (2016).

See Martha F. Davis, Male Coverture: Law and the Illegitimate Family, 56 Rutgers L. Rev. 73, 80-82 (2003). Marriage was imagined to tie fathers to their children, but no similar arrangement assured commitments from unmarried fathers. See Mayeri, supra note 95, at 2381.

100

See Albertina Antognini, From Citizenship to Custody: Unwed Fathers Abroad and at Home, 36 Harv. J.L. & Gender 405, 410 (2013) (explaining that the Court’s “decisions consistently reflect an assumption that the unwed father is absent and the unwed mother is present—not just at birth but in the child’s life thereafter”).

Id. at 353-57. The Court rejected the father’s due process claim because the case involved a right to damages after a child’s death, rather than “the freedom of a father to raise his own children.” Id. at 358-59.

8 U.S.C. § 1409(c) (2012). Section 1409(c) additionally requires that “the mother ha[s] previously been present in the United States or one of its outlying possessions for a continuous period of one year.” Id.

As Reva Siegel has shown, because the Court reasons about reproductive regulation “as a form of state action that concerns physical facts of sex rather than social questions of gender,” it often neglects “the possibility that such regulation may be animated by constitutionally illicit judgments about women.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 264 (1992).

See Abrams & Piacenti, supra note 123, at 634 (finding that “as a descriptive matter . . . immigration and citizenship law generally use more stringent standards for determining parentage than state family law”).

127

See Morales-Santana v. Lynch, 804 F.3d 520, 524, 532-33 (2d Cir. 2015), cert. granted, 136 S. Ct. 2545 (2016) (No. 15-1191). But see Flores-Villar v. United States, 564 U.S. 210 (2011) (per curiam) (affirming, by an equally divided Court, the Ninth Circuit’s determination that the differing residency requirements do not violate Equal Protection because the requirements are rationally related to the government’s interest in establishing a link between the citizen father, illegitimate child, and the United States). At the time this Article was finalized, the Court had not issued its decision in Morales-Santana.

Recent estimates suggest that around six percent of married couples in the United States experience infertility. See Nat’l Ctr. for Health Statistics, National Survey of Family Growth: Infertility, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/nchs/nsfg/key‌_statistics‌/i‌.htm‌#infertility [http://perma.cc/V3WN-T2QW].

136

See Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035, 1072 (2002).

137

See John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. Cal. L. Rev. 939, 942-43 (1986). The first IVF child was born in 1978, but it took years before the procedure became more successful and accessible.

138

See Sarah Franklin, Biological Relatives: IVF, Stem Cells, and the Future of Kinship (2013); Charis Thompson, Making Parents: The Ontological Choreography of Reproductive Technologies (2005). With the assistance of an egg donor, infertile women could become mothers to children they carried and birthed. And women who could not carry a pregnancy but desired a child with a genetic link to themselves or their husbands found hope in gestational surrogacy. Unlike a traditional surrogate, a gestational surrogate carries a child genetically related to another woman—either the intended mother or an egg donor.

Reliable data on gestational surrogacy are not available, but the rise in the number of children born through the process is clear. See S. A. Grover et al., Analysis of a Cohort of Gay Men Seeking Help with Third-Party Reproduction, 98 Fertility & Sterility (Supplement) S48, S48 (2012). Limited data from the Centers for Disease Control and the Society for Assisted Reproductive Technology indicate “an exploding market, one that nearly doubled from 2004 to 2008, producing a total of 5,238 babies over just four years.”SeeMagdalina Gugucheva, Surrogacy in America, Council for Responsible Genetics 7 (2010), http://www.council‌for‌responsiblegenetics.org/pagedocuments/KAeVeJ0A1M.pdf [http://perma.cc/H537-QF9T].

143

SeeMaureen Sullivan, The Family of Woman (2004); Dorothy A. Greenfeld & Emre Seli, Gay Men Choosing Parenthood Through Assisted Reproduction: Medical and Psychosocial Considerations, 95 Fertility & Sterility 225, 225 (2011). While approximately twenty percent of same-sex-couple households include children, these children may be biological, stepchildren, or adopted. Gary J. Gates, LGBT Parenting in the United States,Williams Inst.1 (Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Parenting‌.pdf [http://perma.cc/86S6-R4KB]. ART has become more common as fewer same-sex couples raise children from previous different-sex relationships and more form “intentional or planned LGB-parent families.” Abbie E. Goldberg et al., Research Report on LGB-Parent Families, Williams Inst. 5 (July 2014), http://williamsinstitute.law.ucla.edu/wp-con‌tent‌/uploads/lgb-parent-families-july-2014.pdf [http://perma.cc/23Y7-2H44].

144

Whereas different-sex couples often use ART to form biological parent-child relationships, same-sex couples often use ART to form less traditional family bonds, defying the heterosexual, gendered, and biological norms of parenting. In the 1980s and 1990s, powerful critiques of ART raised equality concerns with respect to sex, race, and class. See, e.g., Gena Corea, The Mother Machine 2-3 (1985); Janice G. Raymond, Women as Wombs 30-31 (1993); Barbara Katz Rothman, Recreating Motherhood 22-23 (1989); Dorothy Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209, 210 (1995). Those critiques focused largely on heterosexual family formation and the prioritization of what Dorothy Roberts called “the genetic tie.” Seeid. at 213 (exploring “how race, along with gender, continues to determine the meaning of the genetic tie”). Even as practices of ART emphasize biological connections, they also destabilize the importance of biological contributions—and do so most powerfully with single and same-sex parenting. Accordingly, an understanding of how ART has facilitated family formation that challenges traditional norms may suggest the need to qualify equality-inflected critiques of ART. Indeed, this Article’s relatively affirmative treatment of ART finds common ground with Roberts’s critique of ART specifically with respect to the call to “reconceive the genetic tie as a nonexclusive bond that forms the basis for a more important social relationship between parents and children.” Id. at 214. Importantly, the point here is not to suggest that equality concerns no longer support critiques of ART, but rather to show how equality concerns also came to animate pro-ART efforts. For other work in this vein, see Cahill, supra note 13, at 683-85; Martha M. Ertman, What’s Wrong with a Parenthood Market? A New and Improved Theory of Commodification, 82 N.C. L. Rev. 1, 37 (2003) (“One important effect of new family forms is that they increase agency for women and gay people generally by undermining patriarchal understandings of family.”).

In the vast majority of situations involving ART, the various parties agree on who should parent the child. Courts need not decide on conflicting claims between those with biological and social claims to recognition. Instead, an individual who seeks parentage on social grounds does so in circumstances in which another individual with a biological connection does not seek parentage. In other words, the intended parent understands herself as a parent, and the gestational surrogate or gamete donor does not. Yet law may assign parentage in ways that diverge from these shared understandings.

In a relatively small number of cases, the parties disagree, or disagreement emerges over time. Law may then assign parentage in ways that match some of the parties’ wishes but not others. Given that this Part focuses substantially on litigated cases, it includes some cases involving disagreement; but these cases represent only a sliver of families formed through ART.

147

The legal landscape includes both legislation and adjudication. While statutes demonstrate developments in the law, cases provide a fuller picture of the reasoning that shapes the law of parental recognition. In addition, given that legislatures in most states have been slow to respond to ART, judicial decisions have been critical drivers of legal change in this area. Nonetheless, this Part does not include the kinds of parentage judgments that some trial courts have been willing to issue without explicit statutory or judicial authority.

148

To deliberately form legally recognized dual-parent families, same-sex couples engage in ART or adoption (either jointly or through adoption by one parent of the other parent’s child). Accordingly, for same-sex couples, attention to ART encompasses the mode of family formation—nonadoptive parentage—that is the focus of this Article.

149

See Dolgin, supra note 1, at 108 (“Biology, in short, gives men options . . . . Mothers, wed or unwed, do not have the same choices.”).

150

See, e.g., Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488, 504 (N.Y. 2016) (Pigott, J., concurring) (claiming that with marriage equality, “[s]ame-sex couples are now afforded the same legal rights as heterosexual couples and are no longer barred from establishing the types of legal parent-child relationships that the law had previously disallowed”).

Fewer than ten states have legislated explicitly in this way as a means of addressing same-sex couples. See infra Appendix A. While a few additional states maintain a statutory marital presumption that does not include gender-specific language, these provisions predate marriage for same-sex couples and were not enacted to address same-sex family formation.

Whether through explicit legislation or a lack of legislation, this is the case in more than forty states. See infra Appendix B. Fewer than ten states have explicit provisions allowing for the unmarried partner’s recognition. (These are the states in Appendix B with a statute regulating donor insemination and no mark in the first column. See infra Appendix B.).

179

This remains the case in more than half the states, with only about fifteen states explicitly providing that a man who donates sperm to a woman who is not his wife is not the child’s legal father. See infra Appendix B.

180

To be clear, that parent may have a biological relationship because of a relative’s gamete donation or gestational role, but does not have a legally cognizable gestational or genetic connection.

181

SeeIn re Madrone, 350 P.3d 495, 501 (Or. Ct. App. 2015) (reasoning that because the donor-insemination statute “would not apply to an opposite-sex couple that made that choice [not to marry], it follows that the statute also should not apply to same-sex couples that make the same choice”); State ex rel. D.R.M., 34 P.3d 887, 892-93 (Wash. Ct. App. 2001) (reasoning that the nonbiological lesbian mother “is not being treated differently than an unmarried man under similar facts” and is therefore not being denied equal protection “based on . . . gender or sexual orientation”); see also Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488, 504 (N.Y. 2016) (Pigott, J., concurring) (asserting that “an unmarried individual who lacks a biological or adoptive connection to a child [born outside marriage] does not have standing . . . regardless of gender or sexual orientation”).

182

More than half of the states have mechanisms—equitable or statutory—that allow an unmarried nonbiological parent to obtain custody or visitation. See infra Appendix C. At times, these paths provide only some parental rights, or fail to treat the unmarried nonbiological parent as standing in parity with the legal parent. These state mechanisms also usually require an extensive period of parenting, thus leaving the unmarried nonbiological parent a stranger at the time of the child’s birth and for some significant period afterwards. Further, they ordinarily require a judicial determination, leading unmarried nonbiological parents to rely on courts to obtain custody or visitation.

183

Once a nonbiological parent qualifies as a legal parent as a family law matter, she has constitutional parental rights, S.Y. v. S.B., 134 Cal. Rptr. 3d 1 (App. Dep’t Super. Ct. 2011), but this is distinct from the idea that the nonbiological parent has a constitutional interest in being recognized as a parent.

184

Russell v. Pasik, 178 So. 3d 55, 55 (Fla. Dist. Ct. App. 2015).

185

See id. at 60.

186

Id. (quoting D.M.T. v. T.M.H., 129 So. 3d 320, 338 (Fla. 2013)).

187

Id.

188

See Dolgin, supra note 1, at 3 (arguing that “it is no longer possible to judge questions about the social dimensions of motherhood against the unchanging parameters of biological maternity”).

189

In re C.K.G., 173 S.W.3d 714, 717 (Tenn. 2005).

190

Id.

191

Id.

192

Id. at 718.

193

Id. at 718-19.

194

Id. at 728.

195

See, e.g., Okoli v. Okoli, 963 N.E.2d 730, 734 (Mass. App. Ct. 2012).

196

Seeinfra Appendix D.

197

In re C.K.G., 173 S.W.3d at 729 (concluding that “gestation is an important factor for establishing legal maternity”).

198

See, e.g., Ohio Rev. Code Ann. § 3111.02 (LexisNexis 2015) (“The parent and child relationship between a child and the child’s natural mother may be established by proof of her having given birth to the child . . . .”).

199

See McDonald v. McDonald, 608 N.Y.S.2d 477, 480-81 (App. Div. 1994) (holding that when genetics and gestation do not coincide in one woman, the intended mother should be the legal parent).

See, e.g., In re Baby M, 537 A.2d at 1241-46 (focusing on the status of the surrogate mother and the biological father, and assuming that even if the surrogacy agreement were accepted, the intended mother would have to adopt the child).

SeeCulliton, 756 N.E.2d at 1135 (quoting the gestational surrogacy contract in this case).

215

Seeid.

216

Id. at 1136.

217

See R.R. v. M.H., 689 N.E.2d 790, 796 (Mass. 1998).

218

See Culliton, 756 N.E.2d at 1137-38.

219

Id. at 1137.

220

Express statutory or appellate authority for the genetic intended mother’s parental status exists in a majority of statesSeeinfra Appendix E. In other states, trial-court decisions (not considered here) may also provide this result.

See, e.g., K.M. v. E.G., 117 P.3d 673, 681 (Cal. 2005) (reasoning that though Johnson declared that a child can have “only one natural mother,” a child can have two natural mothers in the context of same-sex couples); St. Mary v. Damon, 309 P.3d 1027, 1029, 1035 (Nev. 2013) (reversing the district court’s ruling that the birth mother was a surrogate and instructing the district court to “consider the parentage statutes with respect to [women’s] testimonies regarding their intent in creating the child and the nature of their relationship to one another”).

233

See St. Mary, 309 P.3d at 1033.

234

See id. at 1032-33 (noting that “the Legislature has recognized that the children of same-sex domestic partners bear no lesser rights to the enjoyment and support of two parents than children born to married heterosexual parents”).

235

See D.M.T. v. T.M.H., 129 So. 3d 320, 343 (Fla. 2013) (holding that a statute defining “commissioning couple” as the intended “mother and father” impermissibly discriminated against same-sex couples based on sexual orientation); In re Adoption of Sebastian, 879 N.Y.S.2d 677, 688 (Sur. Ct. 2009) (finding that the court lacked jurisdiction to invalidate the law as unconstitutional but nonetheless explaining that “provisions permitting the biological (‘putative’) father of a child born out of wedlock to establish parental status while excluding the genetic mother from the same opportunity is a constitutionally prohibited gender-based classification”).

236

D.M.T., 129 So. 3d at 336-37.

237

Id. at 337-38 (quoting Lehr v. Robertson, 463 U.S. 248, 262 (1983)).

238

Fifteen states have explicit statutory or appellate authority recognizing a nonbiological intended parent using egg-donor gestational surrogacy. See infra Appendix E. Some state statutes remain limited to different-sex couples. See infra Appendix E.

239

In at least eleven states, it is clear that the nonbiological intended parent must adopt the child, either because of a legislative directive, see, e.g., Iowa Admin. Code r. 641-99.15(144) (2016); La. Stat. Ann. § 9:2718 (2016); Neb. Stat. Ann. § 25-21,200 (West 2016), or because of case law, see, e.g., In re Paternity & Maternity of Infant T., 991 N.E.2d 596 (Ind. Ct. App. 2013); In re Parentage of a Child by T.J.S. & A.L.S., 54 A.3d 263 (N.J. 2012) (per curiam). In the remaining states without statutory guidance or negative case law, adoption would presumably be required because of the operation of the governing parentage rules. See infra Appendix E. Trial courts in some states, though, have provided parentage judgments to nonbiological intended parents. See Nicolas, supra note 23, at 1245 (“[S]urrogacy in these states occurs in the shadows . . . .”).

Cf. Hollandsworth, supra note 18, at 214 (“[T]he legal system has created a paradigm for reproduction that statutorily excludes a significant number of children born through donor insemination from having a father. Yet, the same legal system will not allow the child to be born without a mother.”).

271

The results seem inadvertent in many jurisdictions, as courts and legislatures aspire to inclusion and yet do so within frameworks that carry forward legacies of inequality. In other jurisdictions, the results appear more deliberate. This dynamic resonates with Reva Siegel’s account of preservation through transformation. See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111 (1997); see also J.M. Balkin, The Constitution of Status, 106 Yale L.J. 2313, 2326 (1997) (“[S]tatus hierarchies can gain the support of legal norms either directly or indirectly. Legal categories can map status distinctions and even help constitute them . . . [or] status hierarchies can manipulate or work around other kinds of legal distinctions to reproduce themselves in ever new forms.”).

See Culliton v. Beth Isr. Deaconess Med. Ctr., 756 N.E.2d 1133, 1138 (Mass. 2001). Of course, if they are coparenting with the biological parent, they would presumably reside with the child.

276

SeeIn re Adoption of Doe, 326 P.3d 347, 349 (Idaho 2014) (noting that the nonbiological mother in a same-sex couple had to undergo a home study as she sought to adopt children she had been coparenting for more than ten years). This resonates with Bruce Ackerman’s focus on humiliation. See 3 Bruce Ackerman, We the People: The Civil Rights Revolution 137-41 (2014).

Attachment theory focuses on the importance of secure parent-child bonds in infancy. See 1 John Bowlby, Attachment and Loss: Attachment 215-19 (1969). While the original focus was on mother-child relationships, attachment theory eventually included multiple caregivers. SeeJessica Benjamin, The Bonds of Love 209-10 (1988). Legal scholarship on the parent-child relationship tracked this shift. See Peggy Cooper Davis, The Good Mother: A New Look at Psychological Parent Theory, 22 N.Y.U. Rev. L. & Soc. Change 347, 354 (1996) (noting the “emergence of a consensus within the human sciences that a child’s security comes not from a single, constant individual, but from a familiar milieu and a network of attachments”); see also Jean Koh Peters, The Roles and Content of Best Interests in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 Fordham L. Rev. 1505, 1517 (1996) (“[A]nother school of thought suggests that a permanent caregiver may be less important than the family network surrounding the child.”).

Cf. United States v. Windsor, 133 S. Ct. 2675, 2694 (2013) (stating that the Defense of Marriage Act, which in part defined marriage—for the purposes of federal law—as being only between different-sex couples, “makes it even more difficult for the children [of same-sex couples] to understand the integrity and closeness of their own family”).

See Soos v. Superior Court of Ariz., 897 P.2d 1356, 1361 (Ariz. Ct. App. 1995) (Gerber, J., concurring) (explaining how a statute prohibiting surrogacy “imposes the burden of motherhood on a surrogate mother who almost certainly does not wish it and did not contract for it”).

Traditional adoption models have even shaped the emergence of “embryo adoption” programs. See I. Glenn Cohen, Religion and Reproductive Technology, inLaw, Religion, and Health in the United States (Holly Fernandez Lynch et al. eds., forthcoming 2017) (on file with author).

294

See Elizabeth Bartholet, Family Bonds: Adoption and the Politics of Parenting (1993).

295

See Bartholet, supra note 20, at 111.

296

See Oleski v. Hynes, No. KNLFA084008415, 2008 Conn. Super. LEXIS 1752, at *42 (Super. Ct. July 10, 2008) (“If the children here were one day old, and [the gestational surrogate] then [was] turning them over to a stranger, no court in the world would approve that transfer solely on the basis of her contract with that third party, and without any evidence as to whether such a transfer accommodated the children’s interests.”).

As Nancy Polikoff explains in her work on parental recognition in same-sex couples, while a birth certificate “is only evidence of parentage, not definitive proof, it is the one piece of commonly accepted evidence.” Polikoff, supra note 18, at 238-39.

302

710 A.2d 1297, 1300 (Conn. 1998).

303

Id. at 1315-16.

304

178 So. 3d at 57.

305

Id.

306

Id. at 60-61.

307

As Anne Alstott’s work emphasizes, law generally makes “parental exit” difficult so as to protect the interests of children. See Anne L. Alstott, No Exit 45 (2004). Yet here law knowingly severs existing bonds of willing parents.

308

Scholars have long recognized the importance of psychological parent-child bonds. Law has been heavily influenced by the foundational work on children’s best interests and psychological parenthood elaborated by Joseph Goldstein, Albert Solnit, Anna Freud, and Sonja Goldstein. SeeJoseph Goldstein et al., The Best Interests of the Child 11-12, 16, 19 (1996) (emphasizing the importance of the psychological parent regardless of biological connections and elaborating the concept of “common-law adoptive parent-child relationship[s]”). Psychological parent theory influenced Robert Mnookin’s seminal work on custody. See generally Robert H. Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226 (1975). While some scholars focused on a single parent-child relationship, others allowed for multiple bonds. See Davis, supra note 283, at 362.

309

Doe v. Doe, 710 A.2d 1297, 1318 (Conn. 1998).

310

In the earliest contested surrogacy case, Baby M, the New Jersey Supreme Court recognized the surrogate as the legal mother but granted primary custody to the father—and thus placed the child in the home of the intended parents. The custody determination rendered the nonbiological mother the child’s mother in practice. In re Baby M, 537 A.2d 1227, 1260-61 (N.J. 1988). Once the child turned eighteen, she had her mother legally adopt her. Allison Pries, Whatever Happened to Baby M?, Record (Jan. 5, 2010, 7:57 AM), http://archive.north‌jersey‌.com‌/news/whatever-happened-to-baby-m-1.975840 [http://perma.cc/7SVL-8V22].

See Marquardt, supra note 321, at 17, 27; see also Lynn D. Wardle, Global Perspective on Procreation and Parentage by Assisted Reproduction, 35 Cap. U. L. Rev. 413, 453 (2006) (criticizing the “increasing use of ART to produce children to be raised deliberately without a mother and a father”).

329

See, e.g., Brief of 100 Scholars of Marriage as Amici Curiae Supporting Respondents at 28-30, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (Nos. 14-556, 14-562, 14-571, 14-574); see also Ryan T. Anderson, Marriage: What It Is, Why It Matters, and the Consequences of Redefining It, Heritage Found. 3 (Mar. 11, 2013), http://www.heritage.org/marriage-and-family/report‌/marriage‌-what-it-why-it-matters-and-the-consequences-redefining-it [http://‌perma.cc‌/ZKS5‌-2H7U] (“There is no such thing as ‘parenting.’ There is mothering, and there is fathering, and children do best with both.”).

SeeDavid Blankenhorn, Opinion, How My View on Gay Marriage Changed, N.Y. Times (June 22, 2012), http://www.nytimes.com/2012/06/23/opinion/how-my-view-on-gay-marriage-changed.html [http://perma.cc/CNM2-W4M9] (attempting to find common ground on same-sex marriage but urging “both gays and straight people” to agree that “children born through artificial reproductive technology [should have] the right to know and be known by their biological parents”). On this point, see Douglas NeJaime, Griswold’s Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality, 124 Yale L.J. F. 340, 341 (2015).

332

See, e.g., Complaint ¶ 96, Cook v. Harding, No. 2:16-CV-00742 (C.D. Cal. Feb. 2, 2016), 2016 WL 424998 (“The bonding process between the pregnant mother and the children she carries during the nine months of pregnancy is the same physical process and experience, whether or not the mother is genetically related to the children.”); Jennifer Lahl, Commercial Surrogacy: Stop It or Just Regulate It?, Pub. Discourse (Oct. 14, 2015), http://‌www‌.the‌public‌dis‌course‌.com/2015/10/15801/ [http://perma.cc/7HM4-XR7P] (arguing for prohibitions on all forms of surrogacy based in part on the claim that “[s]urrogacy demands that mother and child not bond, a very important part of human reproduction that safeguards the physical and psychological well-being of both mother and child”).

See id. at 3-4. The State’s position was rejected in Raftopol, 12 A.3d at 804, in which the Connecticut Supreme Court recognized a biological father’s same-sex partner, and not the gestational surrogate, as a legal parent.

341

The nonbiological intended mother also defies gender-based roles by separating motherhood from biological reproduction. Attorneys in Baby M portrayed the intended mother, despite her multiple sclerosis, as an ambitious, career-driven woman who delayed and avoided childbearing and thus produced her own dilemma. See Trial Brief on Behalf of Defendants Mary Beth and Richard Whitehead at 4, In re Baby M, 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987) (No. FM25314-86E) (“The Sterns by agreement did not even attempt to conceive a child until Mrs. Stern finished college, medical school and her residency. By the time she finished her residency in the year 1981, she was 36 years old. Thereafter, Mr. and Mrs. Stern have never attempted to conceive a child.”). Such characterizations also appear in contemporary arguments against surrogacy. See, e.g., Sharon Greenthal, Social Surrogacy: A Scary Trend in Pregnancy, Huffington Post (Apr. 21, 2014, 11:53 AM), http://www.huffington‌post‌.com‌/sharon‌-greenthal‌/social-surrogacy-a-scary-_b_5179121.html [http://perma.cc‌/KUC4‌-RTGE] (expressing shock at “women who don’t want pregnancy to interfere with their career trajectory” and wondering “what kind of mothers they’ll be once they’ve been handed their surrogate-grown children” and whether they will “take a day off from their precious careers to tend to a baby that needs them”).

342

See Katharine T. Bartlett, Re-Expressing Parenthood, 98 Yale L.J. 293, 334 (1988) (“[S]urrogacy arrangements may help to dilute the stereotype of the woman in the nuclear family whose role is confined to that of mother and homemaker . . . .”).

For an argument that “genetic essentialism,” which prioritizes the genetic mother over the gestational surrogate, “traces its roots to patriarchal ideology,” see Jennifer S. Hendricks, Genetic Essentialism in Family Law, 26 Health Matrix 109, 120 (2016).

345

As Karen Czapanskiy argues, men volunteer for parenthood, while women are drafted into it. See Karen Czapanskiy, Volunteers and Draftees: The Struggle for Parental Equality, 38 UCLA L. Rev. 1415, 1415-16 (1991). Of course, when the government attempts to establish paternity, it may impose fatherhood on men based on their biological connection. But even then, the government seeks to impose support obligations, rather than child-rearing responsibilities. See id. at 1418. This, too, may reflect stereotypes that situate women as caretakers and men as breadwinners. Moreover, the government does not in practice make paternity compulsory. See Cahill, supra note 13, at 687-88.

See Appleton, supra note 18, at 282 (explaining that “fatherhood remains, in significant part, a ‘secondary’ or derivative relationship that requires an initial determination of the child’s first or ‘primary’ parent, the mother”); Dalton, supra note 159, at 289 (“[T]he mother-child relationship is always seen as primary. The father-child relationships (whether based in biology or not) are always secondary.”).

SeeGoldberg, supra note 316, at 70; Mallon, supra note 313, at 130; cf. Hollandsworth, supra note 18, at 192 (“[G]ay men . . . become the primary caretaker of the child, thereby assuming the role of the ‘mother.’”); Dara E. Purvis, The Sexual Orientation of Fatherhood, 2013 Mich. St. L. Rev. 983, 1004 (“[G]ay stay-at-home fathers begin to break the link between caretaking and femininity.”); Darren Rosenblum et al., Pregnant Man?: A Conversation, 22 Yale J. L. & Feminism 207, 215 (2010) (“I don’t feel like I’m about to become a father. I feel like I’m about to become a mother.”).

357

SeeMallon, supra note 313, at 99 (“The one subject that all the [gay] dads discussed at length was the multitude of questions from people in the community about their child’s mother or lack thereof.”).

At the time of enactment, same-sex couples could not marry. It is unclear how Texas will handle same-sex couples, though its provisions requiring that the “intended mother is unable to carry a pregnancy to term” may be read to exclude male same-sex couples even when they are married. Tex. Fam. Code Ann. § 160.756(b)(2) (West 2016).

362

See In re M.M.M., 428 S.W.3d 389, 398 (Tex. App. 2014).

363

Id. at 392.

364

Id. at 392 n.1. But cf.In re Roberto d.B., 923 A.2d 115, 126 (Md. 2007) (holding that it is “within a trial court’s power to order the [Maryland Division of Vital Records] to issue a birth certificate that contains only the father’s name”).

365

See Hollandsworth, supra note 18, at 235-38.

366

See Eskridge, supra note 24, at 281-82.

367

See NeJaime, supra note 24, at 91-92.

368

For an illustration of an equal-treatment approach, see Garrison, supra note 1.

369

See Siegel, supra note 122, at 368-70.

370

Cf. Martha Minow, All in the Family & in All Families: Membership, Loving, and Owing, 95 W. Va. L. Rev. 275, 304 (1992) (challenging “state standardization and social stigma directed towards groups of people who depart from the state-sanctioned model of the family” and arguing that “stability, nurturance and care should be promoted wherever possible, and people committed to taking on these tasks should be encouraged to do so”).

371

This resonates with Martha Minow’s argument for “disentangling equality from its attachment to a norm that has the effect of unthinking exclusion.” Martha Minow, Making All the Difference 16 (1990).

372

See Law, supra note 101, at 1008-09; Siegel, supra note 122, at 370. Scholars have taken different views on gender neutrality in the regulation of parenthood. CompareMartha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth-Century Tragedies 88-89 (1995) (objecting to the “popular gender-neutral fetish”), with Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167, 171-76 (2015) (arguing that more symmetrical treatment is necessary to challenge the relationship between gender and care). Outside of parenthood, scholars have taken different views on how law should take pregnancy into account. Compare Ann C. Scales, Towards a Feminist Jurisprudence, 56 Ind. L.J. 375, 377 (1981) (arguing that the law should account for the “sex-unique aspects of procreation”), with Wendy W. Williams, Equality’s Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. Rev. L. & Soc. Change 325, 325-28 (1985) (proposing a “rationale for the ‘equal-treatment’ approach to pregnancy”). Perspectives on sex equality that take contrasting views nonetheless take issue with the invocation of biological differences, and pregnancy specifically, to justify harmful gender-based judgments.

373

See Bartholet, supra note 21, at 335-39 (connecting protection of social parent-child bonds to children’s welfare).

374

As Glenn Cohen persuasively argues, best-interest arguments for the regulation of reproduction can mask troubling justifications, but for the regulation of parenthood, children’s interests remain critical. Compare I. Glenn Cohen, Beyond Best Interests, 96 Minn. L. Rev. 1187, 1189 (2012) (arguing that best-interest justifications are “a way of talking about the regulation of reproduction that avoids confrontation with justificatory idioms that are disturbing, controversial, and illiberal”), with I. Glenn Cohen, Regulating Reproduction: The Problem with Best Interests, 96 Minn. L. Rev. 423, 426 (2011) (“[I]n countless . . . areas of family law, the protection of the best interests of existing children serves as a powerful organizing principle that justifies state intervention.”).

375

While this Article’s approach to parentage primarily involves determinations of adult recognition, it reorients that recognition in ways that align with children’s well-being. On the ways in which American law continues to reason in terms of parental rights instead of children’s interests, see Anne L. Alstott, Is the Family at Odds with Equality? The Legal Implications of Equality for Children, 82 S. Cal. L. Rev. 1, 5 (2008), which describes the tendency in “constitutional law and state family law . . . [to] privilege parental rights and disclaim any affirmative state obligation to secure children’s well-being.”

376

In re Guardianship of Madelyn B., 98 A.3d 494, 500 (N.H. 2014); see also, e.g., Elisa B. v. Superior Court, 117 P.3d 660, 669 (Cal. 2005) (recognizing the nonbiological mother as a parent so as not to “deprive [the children] of the support of their second parent”); In re Parental Responsibilities of A.R.L., 318 P.3d 581, 587 (Colo. App. 2013) (recognizing the nonbiological mother based on “the compelling interest children have in the love, care, and support of two parents, rather than one, whenever possible”); Chatterjee v. King, 280 P.3d 283, 293 (N.M. 2012) (“[T]he child’s best interests are served when intending parents physically, emotionally, and financially support the child . . . .”). Of course, the state may also recognize parents on social grounds in order to privatize dependency. This policy decision could further an agenda that relieves the government of obligations to support its citizens. See Melissa Murray, Family Law’s Doctrines, 163 U. Pa. L. Rev. 1985, 1990 (2015) (noting that a “traditional function of the marital family [is] the privatization of support and care of children”).

Of course, other scholars have made powerful arguments that marriage should not play a role in parentage law. See, e.g., Nancy D. Polikoff, The New “Illegitimacy”: Winning Backward in the Protection of the Children of Lesbian Couples, 20 Am. U. J. Gender Soc. Pol’y & L. 721, 722-23 (2012).

383

See Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 Md. L. Rev. 246, 266 (2006) (arguing for the continued utility of the marital presumption in protecting nonbiological relationships).

384

See NeJaime, supra note 16, at 1242-46.

385

The purpose of the parentage statute, as the Massachusetts high court recently recognized in allowing an unmarried, nonbiological mother to establish parentage, “is to provide all ‘[c]hildren born to parents who are not married to each other . . . the same rights and protections of the law as all other children.’” Partanen v. Gallagher, 59 N.E.3d 1133, 1138 (Mass. 2016) (quoting Mass. Gen. Laws ch. 209C, § 1 (2016)).

As the following discussion suggests, some states provide models for this shift. For a thoughtful perspective rejecting thoroughly gender-neutral parentage rules, see Appleton, supra note 18, at 237-40.

393

While this Article does not explore changes to the adoption regime as a potential avenue of reform, one could imagine making adoption less burdensome, at least in the circumstances addressed here. Cf. Bartholet, supra note 294, at 187. One could also imagine making adoption a more general requirement for all parents. The latter approach would challenge the notion that some individuals, but not others, have natural rights to parent particular children. Cf.Bruce A. Ackerman, Social Justice in the Liberal State 126 (1980) (“Infertile citizens . . . are no less entitled to fulfill their good than others who are differently endowed by the genetic lottery.”).

394

In cases involving ART, even those decisions reached on grounds other than intent often align with an intent-based rule. See Mary Patricia Byrn & Lisa Giddings, An Empirical Analysis of the Use of the Intent Test To Determine Parentage in Assisted Reproductive Technology Cases, 50 Hous. L. Rev. 1295, 1316-17 (2013). While devised first in the context of ART, intent-based principles, perhaps surprisingly, might aid more vulnerable families. See Jacobs, supra note 1, at 467.

395

Ideally, law would reward the work of parenting and thus prioritize functional criteria; such criteria would align with this Article’s focus on parenthood as a performative concept. But parents and children have interests in establishing legal relationships at birth, and thus social factors must vary based on timing. Moreover, requiring parental conduct in the absence of biological ties disadvantages same-sex couples, who have critical interests in establishing the nonbiological parent’s status at birth.See Nancy D. Polikoff, And Baby Makes . . . How Many? Using In re M.C. To Consider Parentage of a Child Conceived Through Sexual Intercourse and Born to a Lesbian Couple, 100 Geo. L.J. 2015, 2033 (2012). At that point, intent—evidenced through consent to ART, written acknowledgment of parentage, or marriage to the biological parent—may provide the best indication of a commitment to the work of parenting.

396

Intentional and functional parenthood principles have been used by courts for many years and have been extensively elaborated by scholars. For foundational contributions, see Hill, supra note 91; Martha Minow, Redefining Families: Who’s In and Who’s Out, 62 U. Colo. L. Rev. 269 (1991); Polikoff, supra note 1; and Shultz, supra note 1. For synthesis of intentional and functional principles, see Storrow, supra note 221.

397

See, e.g., V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000); In re Parentage of L.B., 122 P.3d 161 (Wash. 2005). Indeed, some de facto parent statutes instruct courts to make assessments about the quality and significance of the parent-child relationship.See, e.g., Del. Code Ann. tit. 13, § 8-201(c) (West 2015); D.C. Code § 16-831.01 et seq. (2012). Courts also have distinguished between those serving in parent and nonparent roles. See, e.g., Argenio v. Fenton, 703 A.2d 1042 (Pa. Super. Ct. 1997) (denying in loco parentis standing to a grandparent who did not play a parental role). Nonetheless, there is a way in which the assessment of parenting for purposes of parental recognition can reiterate gender stereotypes about the roles of mothers and fathers, and specifically the caretaking norms associated with motherhood. On the normalizing power of performative aspects of family law, see Clare Huntington, Staging the Family, 88 N.Y.U. L. Rev. 589 (2013).

398

Me. Rev. Stat. Ann. tit. 19-A, § 1881(1) (2015).

399

Wis. Stat. Ann. § 891.41 (West 2016).

400

Seeinfra Appendix A.

401

Wash. Rev. Code Ann. § 26.26.116 (West 2016) (emphasis added).

402

SeeNeJaime, supra note 16, at 1190, 1240-41.

403

Washington’s presumption appears to be limited by the state’s unchanged regulation of maternity. Washington law provides that the woman who gives birth is a legal parent. Wash. Rev. Code Ann. § 26.26.101 (West 2016). In contrast, many other states provide merely that the mother-child relationship may be established by proof of giving birth. Accordingly, in Washington, the gender-neutral marital presumption might have significance for nonbiological mothers in different-sex couples and nonbiological fathers in same-sex couples only when the birth mother has already relinquished her rights or had them terminated.

404

The circumstances in which biological evidence would rebut parentage presumptions must be limited. See Polikoff, supra note 395, at 2027. For instance, where the parent is recognized on nonbiological grounds, the court may decide that it is not appropriate to allow biological evidence as grounds for rebuttal. See Partanen v. Gallagher, 59 N.E.3d 1133, 1140 (Mass. 2016). Some provisions already allow courts to exclude biological evidence based on the child’s best interests.See D.C. Code § 16-909(b) (2012); Unif. Parentage Act § 608(b) (Unif. Law Comm’n 2002).

405

A Connecticut court suggested the connection between marriage equality and dual parentage for male same-sex couples engaging in gestational surrogacy. See Cunningham v. Tardiff, No. FA08-4009629, 2008 WL 4779641, at *5 (Conn. Super. Ct. Oct. 14, 2008) (“[A]ny children born as a result of these procedures acquire in all respects the status of a legitimate child; which means that the plaintiffs do not have to terminate the parental rights of the surrogate and her husband, nor do they have to adopt their own children.” (citation omitted)); cf.Partanen, 59 N.E.3d at 1138 n.12 (suggesting that a nonbiological reading of the “holding out” presumption “may apply not only to a child born to two women, but also to a child born to two men through a surrogacy arrangement”).

More general rules of statutory construction may also aid this move, but they vary in critical ways across jurisdictions. While some states have absolute gender-neutral rules of construction, others limit gender-neutrality such that the masculine includes the feminine but the feminine does not include the masculine. See Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341, 370 (2010). In addition, use of specifically gendered terms like mother, father, husband, and wife may be seen to carry their gendered connotations. See Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 349 (Iowa 2013).

413

In re S.N.V., 284 P.3d 147, 148 (Colo. App. 2011). They contended, against the allegation of the birth mother, that they had arranged for the birth mother to act as a surrogate. Id.

414

Colo. Rev. Stat. Ann. § 19-4-105 (West 2016).

415

In reS.N.V., 284 P.3d at 151.

416

Id. at 148.

417

Id.at 151.The parentage code provides that the mother-child relationship may be established “by proof of her having given birth to the child or by any other proof specified in [the code].” Colo. Rev. Stat.Ann. § 19-4-104. The same result could be reached through a gender-neutral and nonbiological “holding out” presumption. See In re S.N.V., 284 P.3d at 151.

As the Massachusetts high court recently suggested in dictum, if “a father validly may execute [a VAP] absent a genetic relationship,” a VAP also “may be executed by a same-sex couple, even if one member of the couple is not biologically related to the children.” Partanen v. Gallagher, 59 N.E.3d 1133, 1139 (Mass. 2016).

See Joslin, supra note 1, at 1222 (“[T]he most appropriate solution is to extend the consent = legal parent rule to all children born through assisted reproduction, regardless of the marital status, gender, or sexual orientation of the intended parents.” (citation omitted)); see also Polikoff, supra note 18, at 233 (addressing donor insemination). The current draft version of the UPA takes an approach that applies the concept of consent broadly to ART. See Unif. Parentage Act, supra note425,§ 704.

427

See Polikoff, supra note 18, at 234.

428

Seeinfra Appendix B.

429

SeeMe. Stat. tit. 19-A, § 1923 (2016).

430

See id. § 1931.

431

See id. § 1933.

432

The current version of the UPA now being drafted and considered also takes this approach. SeeUnif. Parentage Act, supra note425,§ 809.

Id. at 2694; see also Reva B. Siegel, The Supreme Court 2012 Term, Foreword: Equality Divided, 127 Harv. L. Rev. 1, 90 (2013) (“[T]he Court emphasizes the message the law’s enforcement communicates to people, what it ‘tells’ them . . . . This is an account of how people understand and experience the law.”).

442

Windsor, 133 S. Ct. at 2694. As Ackerman argues, the reasoning in Windsor focused on “social meaning,” “moving beyond the law world to the lifeworld.” Ackerman, supra note 276, at 308.

See Lehr v. Robertson, 463 U.S. 248 (1983) (blocking a claim to parental recognition); Parham v. Hughes, 441 U.S. 347 (1979) (rejecting a claim to recovery under a wrongful death statute).

458

Nguyen v. INS, 533 U.S. 53, 65 (2001).

459

Id.

460

518 U.S. 515, 533 (1996). As Reva Siegel shows, even when the Court reasons in what many consider to be an anticlassification framework, it often vindicates antisubordination values. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1472-73 (2004).

461

Virginia, 518 U.S. at 534 (internal citation omitted). As Cary Franklin argues, the Court’s reasoning suggests that “equal protection law should be particularly alert to the possibility of sex stereotyping in contexts where ‘real’ differences are involved, because these are the contexts in which sex classifications have most often been used to perpetuate sex-based inequality.” Franklin, supra note 343, at 146.

462

Virginia, 518 U.S. at 532. This resonates with Akhil Amar’s discussion of how to address, as a constitutional matter, the historical exclusion of women from the country’s decision-making community. SeeAkhil Reed Amar, America’s Unwritten Constitution 279 (2012) (asking how, after the Nineteenth Amendment’s adoption, “should faithful constitutional interpretation make amends for the retrospectively problematic exclusions that defined the American constitutional order prior to 1920?”).

See Siegel, supra note 122, at 264-65 (discussing how questions of gender equality are obscured by physiological reasoning about reproduction in the legal regulation of abortion). On the confused treatment of parentage through ART in citizenship law, see Abrams & Piacenti, supra note 123, at 699-700.

Cf. Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 353 (Iowa 2013) (“When a lesbian couple is married, it is just as important to establish who is financially responsible for the child and the legal rights of the nonbirthing spouse.”).

Cf. Amar, supra note 462, at 302 (noting that “social meaning becomes especially important with regard to certain issues of gender equality,” including those that implicate “biological differences between the sexes”).

See Lehr v. Robertson, 463 U.S. 248, 262 (1983) (“[T]he biological connection . . . offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.”). The biological basis of parental liberty trades on a negative-liberty understanding of constitutional rights, rather than a due process doctrine that confers affirmative recognition. For competing accounts of this negative-positive distinction in constitutional approaches to family law, compare Anne L. Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2014), with Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016). For an approach that grounds rights to parental recognition in due process, see NeJaime & Siegel, supra note 439.

488

See Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 844-45 (1977) (rejecting the claims of foster parents and affirming the importance of “natural” parent-child bonds, but leaving unsettled when, if ever, foster parents might have constitutional liberty interests). But see Elwell v. Byers, 699 F.3d 1208, 1216 (10th Cir. 2012) (extending constitutional protection to “preadoptive parents [who] have a more significant relationship than foster care because of the possibility of developing a permanent adoptive relationship” (quotation marks omitted)). Notably, in Prince v. Massachusetts, the Court assumed the litigant, who was the legal guardian of her niece, could claim constitutional parental rights vis-à-vis her niece, even though it ultimately upheld the governmental intervention. 321 U.S. 158, 161 (1944).

489

A federal district court recently recognized a nonbiological same-sex spouse’s “right to be a parent” as a matter of due process. Henderson v. Adams, No. 1:15-cv-00220-TWP-MJD, 2016 WL 3548645, at *15 (S.D. Ind. June 30, 2016). At least one court has suggested that an unmarried nonbiological mother may have a constitutional liberty interest to maintain the parental relationship. SeeIn re Parentage of L.B., 122 P.3d 161, 177 n.27 (Wash. 2005) (noting that the nonbiological mother “persuasively argue[s] that [she and the child] . . . have constitutionally protected rights to maintain their parent-child relationship,” but concluding that “granting de facto parental standing to [nonbiological mother] renders these additional constitutional concerns moot”).

490

See Cary Franklin, Marrying Liberty and Equality: The New Jurisprudence of Gay Rights, 100 Va. L. Rev. 817 (2014); see also Lawrence v. Texas, 539 U.S. 558, 575 (2003) (striking down sodomy prohibitions by stressing how protection for same-sex sexuality is necessary to shield gays and lesbians from stigma and discrimination).

Marquardt, supra note 321, at 36-37. It is worth noting, though, the recent birth of a child with three genetic parents. See Gina Kolata, Birth of Baby with Three Parents’ DNA Marks Success for Banned Technique, N.Y. Times (Sept. 27, 2016), http://www.nytimes.com/2016‌/09‌/28‌/health/birth-of-3-parent-baby-a-success-for-controversial-procedure.html [http://‌perma.cc‌/K8SN-5UWQ].